Citation Nr: 18139929 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 14-13 700 DATE: October 1, 2018 ORDER Entitlement to an initial 50 percent, but no higher, rating for posttraumatic stress disorder (PTSD) prior to September 23, 2013, is granted, subject to the regulations governing the payment of monetary awards. Entitlement to an initial rating in excess of 50 percent from September 23, 2013 for PTSD, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), is remanded. FINDINGS OF FACT 1. Prior to September 23, 2013, the Veteran’s service-connected PTSD has been manifested by symptoms that most nearly approximated occupational and social impairment with reduced reliability and productivity. 2. Throughout the appeal period, the Veteran’s service-connected PTSD has not resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for an initial disability rating of 50 percent, but not greater, are met for the entire appeal period for PTSD. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1974 to December 1977. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the November 2011 rating decision granted service connection for PTSD and assigned a 30 percent rating, effective July 21, 2010. An April 2014 rating decision granted an increased 50 percent rating for PTSD, effective September 23, 2013. In July 2017, the Veteran appeared at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In December 2017, the Board remanded the claim for further evidentiary development. A. Duties to Notify and Assist The Veteran has not raised any issues with the duty to notify. 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”). Regarding the duty to assist, in an October 2012 notice of disagreement, the Veteran asserted that an April 2011 VA examination was inadequate. The April 2011 examiner addressed the Veteran’s symptomology. Additionally, the Veteran has since been afforded VA examinations in September 2013 and April 2018. These examinations reflected a full evaluation and examination of the Veteran and assessment of his psychiatric symptoms. As such, the Board find that any deficiency in the April 2011 VA examination is immaterial because of the subsequent adequate VA examinations. Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). B. Increased Rating The Board notes that it has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board’s analysis will focus on what the evidence shows, or fails to show, as to the claim. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. With the initial rating assigned following a grant of service connection, separate (staged) ratings may be assigned for separate periods, based on the facts. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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 required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. The Veteran’s PTSD is rated under DC 9411, 38 C.F.R. § 4.130. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 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; difficulty in establishing and maintaining effective work and social relationships. 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent evaluation 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Because “[a]ll non-zero disability levels [in § 4.130] are also associated with objectively-observable symptomatology,” and the plain language of this regulation makes it clear that “the veteran’s impairment must be ‘due to’ those symptoms,” “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, 116-17 (Fed. Cir. 2013). “[I]n the context of a 70[%] rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 117. Therefore, although the veteran’s symptoms are the “primary consideration” in assigning a disability evaluation under § 4.130, the determination as to whether the veteran is entitled to a 70 percent disability evaluation “also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. at 118. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remissions. 38 C.F.R. § 4.126(a). The rating agency shall 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The Global Assessment of Functioning (GAF) score is a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” AMERICAN PSYCHIATRIC ASSOCIATION DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (DSM-IV) at 32. A score of 41 to 50 is assigned where 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). A score of 51 to 60 is appropriate where there are 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 GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. Although current mental health evaluations no longer use this assessment of functioning under the new DSM-5 criteria, the Veteran’s case was originally certified to the Board prior to VA’s amendment to the regulations adopting the use of DSM-5, and accordingly, the Veteran’s claim is evaluated under the DSM-IV criteria, which does consider GAF scores. See 38 C.F.R. § 4.125, amended by 79 Fed. Reg. 45,099 (effective Aug. 4, 2014) and March 2014 Form 8. The Board acknowledges that in Golden v. Shulkin, 29 Vet. App. 221 (2018), the United States Court of Appeals for Veterans Claims (Court) concluded that when assigning a psychiatric rating in cases where the DSM-5 applies, the Board should not use evidence of GAF scores, as the DSM-5 rejected use of those scores. However, as explained, the Veteran’s claim was pending before August 4, 2014 and DSM-IV criteria are applicable. See 38 C.F.R. § 4.125; 79 Fed. Reg. 45,093, 45,094-96 (Aug. 4, 2014); 80 Fed. Reg. 14,308 (Mar. 19, 2015) (final) (providing that for all applications for benefits received by VA or pending before the AOJ on or after August 4, 2014, DSM-5 will apply). As such, to the extent the record contains any GAF scores, they will be considered. 1. Entitlement to a Rating in Excess of 30 Percent Prior to September 23, 2013 The Veteran contends he is entitled to an initial rating in excess of 30 percent for his PTSD prior to September 23, 2013. During an April 2011 VA psychiatric examination, the examiner diagnosed the Veteran with PTSD. The examiner noted the following symptoms were associated with the Veteran’s diagnosis: irritability or outbursts of anger, difficulty concentrating, hypervigilance, depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events), disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances (including work or a work like setting), frustration, and intolerance. The examiner assigned a GAF score of 53. The examiner noted that the Veteran experienced a markedly diminished interest or participation in significant activities and had feelings of detachment or estrangement from others. The examiner noted that the Veteran had restricted range of affect. The examiner opined that the Veteran’s disorder caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner noted that the Veteran’s anger and reactivity have caused him to have problems developing appropriate work relationships. At the July 2017 Board hearing, the Veteran noted that he had trouble sleeping. The Veteran denied nightmares, but indicated that he woke up clammy. The Veteran described feelings of anger, especially as he has aged. The Veteran elaborated that when he was younger, he was the life of the party, but now he does not like being around people. The Veteran stated he has never been comfortable in crowded areas. The Veteran denied ever being married or having children. The Veteran admitted that his memory diminished in the last five to six years. The Veteran added that he would lose track of what he is talking about when in a conversation with another person. Regarding depression, the Veteran testified he felt depressed at times. The Veteran denied suicidal ideations. Regarding employment, the Veteran testified that the longest job he has held was three and half years. The Veteran stated his parents were deceased and he has one sister that he does see often. The Veteran noted he has some friends. Specifically, a friend that resides in Seattle and two that live in Hawaii. The Veteran elaborated that he gets together with people in his local vicinity, but stated he likes to be alone. After evaluating the evidence of record, the Board finds that symptoms of the Veteran’s PTSD, prior to September 23, 2013, more nearly approximate the criteria for a 50 percent rating, as they reflect occupational and social impairment with reduced reliability and productivity. The record indicates the Veteran’s PTSD has been characterized by symptoms of anger, difficulty concentrating, hypervigilance, depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events), disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. This evidence is more consistent with a finding of occupational and social impairment with reduced reliability and productivity. For example, the Veteran testified that he experienced difficulties with sleeping, anger, and crowds. The evidence shows that prior to September 23, 2013, the Veteran suffered from mild memory loss. Additionally, the April 2011 examiner noted that the Veteran experienced difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances. Based on the overall evidence prior to September 23, 2013, and resolving doubt in the Veteran’s favor, the Board concludes that prior to September 23, 2013, the Veteran’s PTSD caused occupational and social impairment with reduced reliability and productivity. 2. Entitlement to a Rating in Excess of 50 Percent The Veteran argues he is entitled to an initial rating in excess of 50 percent for his PTSD throughout the appeal period. As the analysis above awards a higher 50 percent rating for the period prior to September 23, 2013, the remainder of the analysis will address whether the Veteran is entitled to an initial rating in excess of 50 percent throughout the appeal period (i.e., prior to and from September 23, 2013). During a September 2013 VA examination, the Veteran reported symptoms of insomnia, troubles with concentration, occasional night sweats, nightmares around Christmas time, and monthly panic attacks. The Veteran noted he avoided crowds and preferred to be near the wall and able to see the other people. The Veteran described feelings of irritability and anger that resulted in verbal altercations. The Veteran denied any suicidal ideations, homicidal ideations, auditory hallucinations, and visual hallucinations. The Veteran denied ever been married and denied having children. He noted his parents were deceased, but indicated he has two sisters. Regarding employment, the Veteran stated he worked as a carpenter from 1977 to 2005, but did not stay at a job for more than one year. The Veteran explained that he owned his own business and worked as an independent contractor but stopped in 2005 because he began receiving a pension. The examiner diagnosed the Veteran with PTSD. The examiner noted the following symptoms were associated with the Veteran’s diagnosis: difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, exaggerated startled response, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances (including work or a work like setting), and an inability to establish and maintain effective relationships. The examiner noted that the Veteran experienced a markedly diminished interest or participation in significant activities and had feelings of detachment or estrangement from others. The examiner assigned a GAF score of 65. The examiner opined that the Veteran’s disorder caused occupational and social impairment with reduced reliability and productivity. During an April 2018 VA examination, the Veteran reported symptoms of anxiety and being easily irritated around people, easily startled, and less social. The Veteran added that these symptoms worsened since 2013. The Veteran noted he has never been married and denied having children. He indicated that he lived alone and reported a limited social support. Regarding employment, the Veteran indicated that he last worked in 2005. The Veteran’s appearance was described as appropriate. The Veteran’s eye contact, motor activity, thought process and thought content was noted to be normal. The examiner stated the Veteran’s attitude was cordial and cooperative. The examiner added that the Veteran joked and laughed throughout the evaluation. Mood was noted to be euthymic and affect as congruent. His speech was somewhat rapid and slightly pressured at times. His thought process and thought content were normal. The examiner diagnosed the Veteran with PTSD. The examiner noted the Veteran’s PTSD symptoms included persistent and exaggerated negative beliefs or expectations about oneself, others, or the world; persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame); markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; hypervigilance, exaggerated startle response; problems with concentration; and sleep disturbances. The examiner noted that these symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The Veteran denied suicidal ideations and homicidal ideations. The examiner added that the following symptoms were associated with the Veteran’s diagnosis: anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, intrusion symptoms, avoidance symptoms, negative alterations in cognition and mood, and alterations in arousal and reactivity. The examiner opined that the Veteran’s disorder caused occupational and social impairment with reduced reliability and productivity. Specifically, the examiner indicated that the Veteran’s anxiety and panic attacks would likely impact his work productivity and that his chronic sleep impairment, memory loss, disturbances of motivation and mood, and difficulty adapting to stressful circumstances would likely impede his work attendance. He also indicated that the Veteran’s difficulty with relationships would likely impede development of effective professional relationships in the workplace. Following a thorough review of the evidence of record, the Board finds that the criteria for a rating in excess of 50 percent for PTSD have not been met at any time during the appeal period. The record indicates the Veteran’s PTSD has been characterized by anxiety, sleep disturbance, irritability, hypervigilance, and difficulty in establishing and maintaining effective work and social relationships. The Veteran’s medical records during the appeal period reflect that the Veteran exhibited good hygiene and grooming and was fully oriented. The evidence did not show inappropriate behavior or that the Veteran was a danger of hurting himself and others. There was no evidence of suicidal ideations or homicidal ideations. The Veteran has consistently denied auditory hallucinations and visual hallucinations. There was no significant memory impairment, or obsessive or compulsive behavior noted. Obsessional rituals have never been noted. Additionally, the Veteran was able to perform activities of daily living and continued to have friends. For example, the Veteran stated that he has some friends. He explained that he gets together with people in his local vicinity. The Board acknowledges that on April 2011 and September 2013 VA examinations, the examiners noted that the Veteran had difficulty adapting to stressful circumstances and experienced irritability and outbursts of anger. Further, on September 2013 VA examination, the examiner indicated that the Veteran had an inability to establish and maintain effective work and social relationships. Although these are symptoms noted in the higher 70 percent rating criteria, the Board finds that the frequency, duration, and severity of these symptoms does not more nearly approximate occupational and social impairment with deficiencies in most areas. Specifically, the Board finds that the evidence shows the frequency, duration, and severity of these symptoms result in deficiencies in work, school, and family relations. However, as described above, a preponderance of the evidence is against a finding that the frequency, duration, and severity of these symptoms and the Veteran’s other symptoms result in deficiencies in judgment, thinking, or mood, and as such, is against a finding that the Veteran’s symptoms more nearly approximate occupational and social impairment with deficiencies in most areas. The frequency, duration, and severity of the Veteran’s symptoms are more consistent with a finding of occupational and social impairment with reduced reliability and productivity. Therefore, the Board finds that a rating in excess of 50 percent for PTSD is not warranted at any time during the appeal period. The Board notes that the Veteran’s GAF score assigned on the April 2011 and September 2013 VA examinations are not inconsistent with the 50 percent rating assigned, and of itself do not provide a separate basis for increasing the rating. The Board has also considered the Veteran’s statements regarding the severity of his psychiatric disorder. The Veteran is competent to report the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Ultimately, however, the opinions and observations of the Veteran do not meet the burden for a higher rating imposed by the rating criteria under 38 C.F.R. § 4.130 with respect to determining the severity of his service-connected psychiatric disorder. The Board has considered whether any staged rating is appropriate and finds that the frequency, duration, and severity of the Veteran’s symptoms have been consistent with a 50 percent rating throughout the appeal period. The record does not indicate any significant increase or decrease in the Veteran’s symptoms that is not already accounted for by the assigned rating. Accordingly, staged ratings are not warranted. See Fenderson, 12 Vet. App. at 126. In summary, the evidence more nearly approximates the criteria for a higher 50 percent rating prior to September 23, 2013, but a preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 50 percent at any time during the appeal period. Therefore, a rating in excess of 50 percent is denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. REASONS FOR REMAND Entitlement to TDIU is remanded. The Veteran is seeking entitlement to TDIU on the basis that he is unable to obtain and maintain substantially gainful employment due to the severity of his service-connected PTSD. TDIU may be assigned where the schedular rating is less than total, and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. If a veteran fails to meet the schedular criteria and is unable to secure or follow a substantially gainful occupation by reason of service-connected disability, the Board should refer the case to the Director of Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). Here, the Board notes that the Veteran does not meet the schedular requirement for a TDIU. The Veteran’s service connected PTSD is rated 50 percent for the entire appeal period. The Veteran does not have any other service-connected disabilities. The Veteran’s Application for Increased Compensation Based on Unemployability, indicated he has been unemployed since 2005 as a result of his PTSD. Additionally, the April 2018 examiner opined that the Veteran’s PTSD symptoms of anxiety and panic attacks would likely impede work productivity. The examiner added that the Veteran’s PTSD symptoms of chronic sleep impairment, memory loss, disturbances of motivation and mood, and difficulty adapting to stressful circumstances would likely impede work attendance. The examiner elaborated that the Veteran’s PTSD symptom of difficulty with relationships would likely impede development of effective professional relationships in the workplace. Based on this evidence, the Board finds that consideration of entitlement to a TDIU on an extraschedular basis is therefore warranted. As the Board cannot consider entitlement to TDIU in the first instance, this issue must be remanded for referral to the Director, Compensation Service. 38 C.F.R. § 4.16; see also Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The matter is REMANDED for the following action: Refer the Veteran’s claim for entitlement to a TDIU to the Director of Compensation Service for an opinion as to whether the Veteran’s service-connected PTSD renders him unable to secure and follow a substantially gainful occupation, pursuant to § 4.16(b). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Patel, Associate Counsel