Citation Nr: 1805698 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 09-21 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas 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 upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Davis, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to March 1973 and from July 1973 to April 1974, including service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This Board previously remanded case in both October 2014 and September 2015 for further development. The issue(s) of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's service-connected PTSD has resulted in occupational and social impairment with deficiencies in most areas of work, school, family relations, judgment, thinking and mood; but not total occupational and social impairment. CONCLUSION OF LAW From June 18, 2007, the criteria for a rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107(b) (West 2012); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2017). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION Psychiatric Disability Disability evaluations are determined by the application of a schedule of ratings that are based on average impairment of earning capacity. See 38 U.S.C.A. § 1155; Part 4. Separate diagnostic codes identify the various disabilities, and disabilities must be reviewed in relation to their history. See 38 C.F.R. § 4.1. VA is required to interpret examination reports in light of the whole recorded history, reconcile the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, resolve any reasonable doubt regarding the degree of disability in favor of the claimant, evaluate functional impairment on the basis of lack of usefulness, and evaluate the effects of the disability upon the veteran's ordinary activity. 38 C.F.R. §§ 4.2, 4.3, 4.10. This analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. The rating period on appeal of a denial of an increased rating may be one year prior to the date of receipt of the increased rating claim, provided that the evidence reflects a worsening of the disability during that one year time period. Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010); See 38 C.F.R. §§ 4.1, 4.2, 3.400(o)(2). PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under that diagnostic code, a 50 percent rating will be assigned 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-term 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; difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9411. 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, and mood, due to such symptoms as: suicidal ideations; 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. 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; gross 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. The symptoms listed in the criteria 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." See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). "[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 (Fed. Cir. 2013). 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. See 38 C.F.R. § 4.126. Further, 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. See Id. The Global Assessment of Functioning (GAF) was a scale meant to reflect the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The Board notes that GAF scale was removed from the more recent DSM-5. Notwithstanding this fact, the GAF score and interpretations of the score are important considerations in the rating of a psychiatric disability, though the GAF score assigned to a veteran is not dispositive of the severity of the veteran's mental health disability. See Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). The GAF score must be considered in light of the actual symptoms manifested by the veteran's disorder, which must provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126 (a). VA previously adopted the American Psychiatric Association: Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), for rating purposes. VA adopted DSM-5, effective August 4, 2014, and determined that DSM-V applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). As the Veteran's increased rating claim was originally certified to the Board before August 4, 2014, the DSM-IV is applicable. The Veteran's psychiatric disability is currently rated as 50 percent disabling. He contends that he is entitled to an increased rating. After reviewing all the lay and medical evidence of record, the Board resolves all doubt in the Veteran's favor and finds that the assignment of a disability rating of 70 percent, but no higher, is warranted for the entirety of the period under review. Evidence of record includes VA treatment records received in August 2007. These records show that the Veteran has consistently reported feeling of isolation, depression and anger and he felt numb and detached from others. The Veteran underwent a VA examination in September 2007. He again reported feelings of isolation, and feeling on guard in crowds. His judgment was deemed only "fair," and his alcohol use was deemed to be due to PTSD. The examiner noted the Veteran had difficulty establishing and maintaining effective work and social relationships, difficulty maintaining family role functioning, and was unable to perform recreation or leisurely pursuits. He was assigned a Global Assessment Functioning (GAF) score of 48, which under the DSM-IV 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). The Veteran underwent another VA examination in January 2008. At such time, he reported that his symptoms had worsened since the last VA examination, and he had entered a PTSD treatment program. He reported that he has left work sites due to his depression and that he gets "so down that he doesn't go in about a couple of months at a time." See January 2008 VA examination at 3. In reference to social impairment, he also reported the Veteran had separated from his wife and had lost touch with most of his friends. Overall, the examiner described the Veteran's marital and family relationships as poor with limited social relationships. The examiner also noted a history of impaired impulse control, and moderate to severe restricted range of affect with little sense of joy or happiness in his life. An August 2008 statement from the Veteran's ex-spouse explained how his PTSD symptom, specifically impulses of anger and bouts of severe depression, ruined their marriage. VA treatment records received in February 2009 reflect that the Veteran participated in individual psychotherapy for his PTSD. A March 2009 lay statement from a buddy indicates that the Veteran was socially isolated and that his marriage failed as a result of his PTSD. In his June 2009 Form 9, the Veteran indicated that his PTSD symptoms were becoming much worse. Specifically, he stated that he had increasing depression and increased isolation. He reported that he was going to "devise his will when he got the money." He also reported that he seldom went to church anymore. See June 2009 Form 9. VA treatment records received in July 2009 showed that the Veteran reported worsening depression and isolation. The Veteran also underwent a VA examination in July 2009. The examiner noted that the Veteran had a depressed mood, poor concentration, and high anger/irritability. It was also noted that his wife moved out of the marital home 18 months prior. The Veteran described that he did not get along with people and that he did not have any friends. The examiner summarized the Veteran's psychosocial functional status as follows: "not able to get along with people; isolates; gets angry; has depression." Upon physical examination, a depressed mood was again noted. The examiner further noted that the Veteran had feelings of estrangement from others, irritability and outburst of anger, and hypervigilance, and exaggerated startle response. He found the Veteran's PTSD symptoms to be of moderate severity. At the time of examination the Veteran was employed, however poor social isolation was noted as a problem related to occupational functioning. Finally, the July 2009 examiner remarked, "depression and PTSD contribute to problems with marriage, work and social relationships." Also of record are medical treatment records received in February 2014. They show that the Veteran reports problems with anger, depression and isolation in relation to his PTSD. The Veteran underwent another VA examination in January 2015. At such time, it was noted that he was legally separated from his wife for 10 years. He was fired from his employment at a home improvement store due to "bad attitude and that he was self-employed with part time work. The Veteran reported that in January 2014, he became suicidal and had thoughts of swimming out into the Gulf of Mexico to drown, but instead began therapy treatment for PTSD and depression. He continued to self-isolate and stated he no longer trusts anyone anymore. In reference to PTSD diagnostic criteria, the examiner marked that the Veteran had feeling of isolation and detachment, irritable behavior and angry outbursts, hypervigilance, exaggerated startle response, problems with concentration, persistently negative emotional state, sleep disturbance and other PTSD related symptoms that persisted more than one month. The examiner provided that the Veteran's PTSD symptoms "cause clinically significant distress or impairment in social, occupation, or other important areas of functioning." He opined that the Veteran's PTSD with anger, irritability, problems with sleeping, fatigue, interpersonal problems, increased anxiety to cues in the environment, concentration and memory problems interfere with his ability to secure and follow a substantially gainful occupation, although the Veteran maintained gainful employment for 20-25 hours a week. In correspondence received from the Veteran in February 2015, suicidal ideation was noted. The Veteran reported that he "started giving his furniture away and was going to drown [him]self in the Gulf of Mexico." He also indicated that he threatened his boss with physical harm was expecting to be fired. VA treatment records received in September 2015 corroborate the Veteran's reported symptoms of isolation, depression and anger and problems with work. In addition, the Veteran underwent another VA examination in November 2017; at such time, the examiner reported that there was no change in symptomology since the previous VA examination. Upon review of the evidence discussed above, the Board resolves all doubt in the Veteran's favor and finds that his PTSD manifests in symptoms that most closely approximate those contemplated by the assignment of a 70 percent rating. Indeed, the Veteran's disability has manifested in occupational and social impairment in most areas. He has demonstrated ongoing isolation, hopelessness, suicidal ideation, aggressive behavior, and limited ability to maintain social or work relationships. For these reasons, the Board will award an increased rating from 50 to 70 percent effective the date the Veteran filed for increase, June 18, 2007. The evidence does not demonstrate an increase in severity during the one-year look back period from June 2006 to 2007. That stated, a rating in excess of 70 percent is not warranted at any time, as total occupational and social impairment has not been demonstrated. Indeed, the Veteran has been able to work, albeit with difficulties, at various times during the appeal period, to include self-employment, and is able to have relationships with some Vietnam buddies. He does not exhibit any of the symptoms listed as examples of those typically associated with a 100 percent rating, and the Veteran has not argued that he meets the schedular criteria for a 100 rating. Because total occupational and social impairment is not demonstrated, a schedular rating of 100 percent is not warranted. 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, 369-370 (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 From June 18, 2007, a rating of 70 percent, but no higher, for service-connected PTSD, is granted. REMAND TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) 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). As discussed above, the Board has assigned a 70 percent rating for PTSD from June 18, 2007 to the present. To the extent the Veteran asserts that he can no longer work due to his service-connected PTSD, the Board recognizes that in August 2016, the Veteran lost his job as a wood flooring installer due to anger-related problems. See a September 22, 2016 Request for Employment Information. Subsequently however, at a November 2017 VA examination, the Veteran reported he had started a new job and had been with that employer for two weeks. He indicated that he has difficulty with supervisors. The November 2017 VA examiner opined that the Veteran is currently able to work, and that although the Veteran struggles with social interactions, "a job that allows him to work generally independently appears to be an ideal fit." From the record it is unclear whether the Veteran's current employment is in fact substantially gainful. The Veteran should be provided a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to obtain relevant employment information from 2016 to today. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), and ask the Veteran to complete and return the form so that VA may have a complete understanding of his employment history, in particular from August 2016 to the present day. 2. After undertaking any other development deemed necessary, readjudicate the appeal. If the benefit sought on appeal is denied, send the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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. §§ 5109B, 7112 (West 2012). ______________________________________________ V. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs