Citation Nr: 18140104 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 14-25 953 DATE: October 2, 2018 ORDER A higher initial disability rating of 70 percent for posttraumatic stress disorder (PTSD) for the period from August 20, 2010 is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. For the period on appeal from August 20, 2010, PTSD has been manifested by occupational and social impairment with deficiencies in most areas. 2. For the period on appeal from August 20, 2010, PTSD has not been characterized by total occupational and social impairment. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, for the rating period on appeal from August 20, 2010, the criteria for a disability rating of 70 percent, but no higher, for PTSD have been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service from February 1998 to October 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision by the Regional Office (RO) RO in Chicago, Illinois, which granted service connection for PTSD and assigned a 50 percent initial disability rating, effective August 20, 2010. A June 2013 rating decision denied a TDIU. Within one year of the June 2012 rating decision, new evidence regarding the severity of PTSD was received, to include various VA treatment records and a September 2012 VA Form 21-8940 asserting that PTSD impacted full-time employment from September 11, 2012; therefore, as new and material evidence was received within one year of the June 2012 rating decision, that rating decision did not become final, and the period on appeal is the initial rating period from August 20, 2010 (date of claim for service connection). See 38 C.F.R. § 3.156(b). The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Review of the record reflects that the Veteran received adequate notice concerning the issue on appeal. As to the duty to assist, the record reflects that VA obtained treatment (medical) records. The Veteran has received multiple VA examinations throughout the course of this appeal. The examination reports are of record. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. The examination reports reflect that, taken together, the VA examiners reviewed the record, conducted in person examinations with appropriate testing, and adequately answered all relevant questions. There remains no question as to the substantial completeness of the record as to the issue on appeal. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). Any duties imposed on VA, including the duties to assist and to provide notification, have been met as set forth above. Higher Initial Rating for PTSD Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Pertinent in this case, the General Rating Formula provides that a 50 percent rating is assigned 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. 38 C.F.R § 4.130. A 70 percent rating will be assigned 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 inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent schedular rating contemplates 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. The use of the term “such as” in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disability, and the effect of those symptoms on his/her social and work situation. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” The Federal Circuit stated 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.” It was further noted that “§ 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.” In Golden v. Shulkin, No. 16-1208 (U.S. Vet. App., Feb. 23, 2018), the U.S. Court of Appeals for Veterans Claims (Court) held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating when the appeal was certified after August 4, 2014; however, because of the Court’s emphatic pronouncement in Golden that the GAF scores are methodologically flawed and are particularly unreliable as applied to PTSD, in this decision, the Board will place no reliance on GAF scores for rating this Veteran’s PTSD. The Veteran contends generally that the service-connected PTSD has been manifested by more severe symptoms and impairment than contemplated by the 50 percent disability rating assigned for the initial rating period from August 20, 2010. A July 2013 statement reflects the Veteran wrote that PTSD should be rated as 100 percent disabling due to, in part, suicidal thoughts. A July 2014 statement reflects the Veteran wrote that PTSD should be rated as 70 percent disabling due to depression, treated with medication, and the inability to “keep a steady job.” After a review of the lay and medical evidence, the Board finds that, for the rating period on appeal from August 20, 2010, the frequency, severity, and duration of the psychiatric symptoms has caused occupational and social impairment with deficiencies in most areas as to more nearly approximate the criteria for a 70 percent rating under Diagnostic Code 9411. During the initial rating period from August 20, 2010, PTSD has more nearly approximated occupational and social impairment with deficiencies in most areas due to such symptoms memory loss, disturbances of motivation and mood, outbursts of anger, irritability, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The evidence of record includes a January 2011 VA treatment record reflecting irritability and a September 2011 VA treatment record reflecting anger issues. An October 2011 VA treatment record reflects symptoms of PTSD were treated with antidepressants. A May 2012 VA examination report reflects the VA examiner specifically assessed irritability, depressed mood, anxiety, chronic sleep impairment, difficulty concentrating, disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. An April 2013 VA examination report reflects anger, flattened affect, and difficulty in establishing and maintaining effective work and social relationships. A July 2013 statement reflects the Veteran wrote that symptoms of PTSD manifested as suicidal thoughts. A July 2018 VA examination report reflects the VA examiner assessed mild memory loss, irritability with outbursts of anger, disturbances of motivation and mood, depressed mood, suspiciousness, and anxiety. For these reasons, and after resolving all reasonable doubt in favor of the Veteran, the Board finds that, for the entire rating period from August 20, 2010, a 70 percent disability rating is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The Board also finds that, for the initial rating period on appeal from August 20, 2010, the level of occupational and social impairment due to acquired psychiatric disorder symptoms did not meet or more nearly approximate the criteria for a higher 100 percent disability rating. See 38 C.F.R. § 4.130. For the rating period on appeal from August 20, 2010, the record does not show total occupational and social impairment as required for a 100 percent disability rating under Diagnostic Code 9411. A review of the relevant lay and medical evidence, including VA treatment records, the May 2012, April 2013, and July 2018 VA examination reports, and lay statements, does not reveal that the Veteran has experienced total occupational and social impairment due to the service-connected PTSD. No VA examiner or recorded history of symptoms has indicated persistent delusions or hallucinations, persistent danger of hurting self or others, obsessive rituals that interfere with routine activities, and/or near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, and the Veteran has not alleged otherwise. In addition, the July 2018 VA examination report reflects that the VA examiner specifically opined that PTSD manifested as occupational and social impairment with reduced reliability and productivity, and the April 2013 and May 2012 VA examiners each opined that PTSD manifested as occupational and social due to mild or transient symptoms. The VA treatment records and VA examination reports also indicate the Veteran was alert and oriented in all spheres, thought processes were logical, and judgment was intact. It is only with application of reasonable doubt that the criteria for a 70 percent rating are met. See July 2018, April 2013, May 2012 VA examination reports, VA treatment records. For these reasons, the Board finds that the Veteran’s symptomology and social and occupational impairment more nearly approximated the criteria for a 70 percent rating for the period from August 20, 2010, but did not more nearly approximate the higher 100 percent disability rating criteria for this period. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Referral Consideration The Board has considered whether the Veteran or the record has raised the question of referral for an extraschedular rating adjudication under 38 C.F.R. § 3.321(b) for any period for the initial rating issue on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008). After review of the lay and medical evidence of record, the Board finds that the question of an extraschedular rating has not been made by the Veteran or raised by the record as to the rating issue on appeal for any period on appeal. 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); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not “specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted”). REASONS FOR REMAND TDIU The Board finds that the Veteran’s employment history is unclear from the record. In a September 2012 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran reported that the inability to work was due to service-connected PTSD. The Veteran also reported last working from December 8, 2012 to September 11, 2012, which appears to be a typographical error. In addition, the Veteran reported four years of high school and no other education or training. A May 2012 VA examination report reflects the Veteran reported working for an insurance company from the basement of the home and that he was looking for a new job. An April 2013 VA examination report reflects the Veteran reported attending school to become an electrician. A December 2016 VA Form 21-8940 reflects the Veteran reported that sleep apnea and PTSD impacted the ability to work, one year of college, and denied any additional education or training. The Veteran did not fill out the entire form, to include information regarding employment or attempts to obtain employment. June 2017, October 2016, March 2015, and April 2014 VA treatment records each reflect that the Veteran reported being employed. Based on the above, the Board finds it necessary to clarify the Veteran’s self-reports of employment, including any additional education or training. On remand, the AOJ should give the Veteran the opportunity to provide an updated and accurate VA Form 21-8940 detailing the complete work and education history, income earned, to include highest gross earnings per month, and any other information regarding employment or attempts to obtain employment. Failure to complete and return the requested TDIU claim form will result in abandonment of the claim per 38 C.F.R. § 3.158. The matter is REMANDED for the following action: 1. 1. Request that the Veteran file an updated Application for Increased Compensation Based on Unemployability (VA Form 21-8940) detailing his complete and accurate work history and income information, including self-employment and any other information regarding full-time or part-time employment or attempts to obtain employment. The Veteran is advised to complete the entire form. In the event that the TDIU claim form is not fully completed and returned, the question of abandonment of the TDIU issue will be adjudicated. See 38 C.F.R. § 3.158. 2. Thereafter, the issue of a TDIU should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and representative should be provided with a statement of the case. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel