Citation Nr: 18142434 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 12-26 810 DATE: October 15, 2018 ORDER Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating due to individual unemployability as a result of service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s PTSD is manifested by no more than an occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; total social impairment is not shown. 2. The Veteran’s service-connected disabilities are shown to have rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent rating for PTSD have not been met. 38 U.S.C. § 1155 (2012), 38 C.F.R. §§ 4.1, 4.3, 4.130, Diagnostic Code 9411 (2018). 2. The criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 4.16(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May 1964 to April 1966 and from August 5, 1972, to August 19, 1972. He had military reserve service until January 2001. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter “the Court”) in February 2018, which vacated an October 2016 Board decision as to the increased rating claim and remanded the matter for additional development. The increased rating claim was found to be inextricably intertwined with the TDIU issue remanded by the Board in October 2016. It was also noted that the Veteran had requested that his claim not be considered for extraschedular rating evaluation. 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified 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. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran’s disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). 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. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the responsibility of the rating specialist to interpret reports of examination in the 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 present. 38 C.F.R. § 4.2 (2018). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2018). When rating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran’s capacity for adjustment during periods of remission. The rating agency shall assign a rating 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. When rating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (2018). During the course of this appeal, the rating criteria were revised to update references pertinent to the American Psychiatric Association, Diagnostic and Statistical Manual for Mental Disorders (5th ed.) (DSM-5). Those changes included removal of the multi-axis system, Global Assessment of Functioning (GAF) score method of assessment. No additional substantive revisions have been made to VA’s General Rating Formula for Mental Disorders. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). Under the Diagnostic and Statistical Manual for Mental Disorders (4th ed.) (DSM-IV), the GAF score was previously described for VA purposes as a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores ranging between 61 to 70 indicated 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 generally indicate that the individual is functioning “pretty well,” and has some meaningful interpersonal relationships. Scores between 51 to 60 indicated 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). Diagnostic Code 9411 governs ratings for PTSD. A 70 percent evaluation is assigned when PTSD causes 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); or an inability to establish and maintain effective relationships. A 100 percent rating is assigned when PTSD causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. 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 disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), 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 also 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.” Id. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2018). The Veteran contends that his PTSD was more severe than the presently assigned 70 percent rating. In statements and testimony in support of the claim he asserted that he was unemployable because of his PTSD and described having problems sleeping and with irritability. His request to reopen a service connection claim for PTSD was received on October 18, 2010. The pertinent medical evidence of record includes an April 2011 VA examination report noting the Veteran had recurrent recollection of events in Vietnam and increased arousal due to a traumatic event. Moreover, he had difficulty falling asleep and hypervigilance. He reported having a difficult relationship with his brothers and sisters, but reported he had been married for 47 years at the time of the examination. The Veteran and his spouse were noted to have four children and that he maintained good relationships with the children. He reported his last job was working part-time for a pharmacy company and that he had good relationships with his supervisors and coworkers. He also reported having no problems getting along with others as a reservist. The examiner found the Veteran was short tempered and quite impatient with others. He was over inclusive and would get carried away in his thought process without giving any importance to the time he had spent in a conversation. His concentration was normal and he did not have any panic attacks. He admitted to being suspicious. He denied hearing voices or seeing things and was not delusional with no history of hallucinations. His thought process was normal, but somewhat pressured, and his judgment and abstract thinking were normal. His memory for remote and recent events was good, but he reported having memory problems. No suicidal or homicidal ideations were documented. The examiner found the Veteran’s present state of mind would make it very hard for him to get a job in his field, especially when he had a tendency to dominate the conversation. A GAF score of 60 was provided. A neuropsychological assessment was completed by Dr. J.M., Psy.D, in April 2012. At that time, the Veteran endorsed concerns with short term recall. He also identified concerns with attentional processing and work finding difficulty. He reported symptoms of anger and worry. The examiner noted he was adequately dressed and groomed. Overall, he remained cooperative to the best of his abilities. It was further noted that the Veteran described himself as potentially prone to extreme anger displays, and that changes in routine and unexpected events were likely to generate stress. Private treatment records from Dr. W.B. dated September 2012 through May 2013 document the Veteran’s treatment for his PTSD symptoms, including his difficulties with anger and irritability as well as his issues relating to “taking care of his people.” A September 2012 treatment report noted the Veteran’s major symptoms as irritability and outbursts of anger. The Veteran reported having intrusive thoughts, insomnia, hypervigilance, and anxiety. An October 2012 noted he was upset about his memory function and appeared to find social situations in a negative light. A March 2013 report noted irritability with his 47-year old special needs daughter and with his spouse. In an April 2013 hearing with a Decision Review Officer the Veteran testified as to the history and nature of his PTSD as well as his treatment history. He reported PTSD symptoms including that he was not able to sleep well at night, even when he used medication sleep aids. He described his PTSD symptoms has having impacted his social life and stated that he had no friends. He also reported issues with his memory and with anger outbursts. He testified that he cannot work, that he did not go to school, and that his mood changed all the time. He reported experiencing obsessed rituals which interfered with routine activities and having intermittently illogical speech and unprovoked irritability. A March 2013 letter from Dr. W.B., Ph.D., the Veteran’s treating psychologist, reported initial symptoms of PTSD included irritability with unprovoked outbursts of anger as well as intrusive thoughts, insomnia, hypervigilance, and anxiety. The symptoms were noted to have negatively impacted his ability to establish and maintain close interpersonal relationships and social relationship in general. The examiner also described issues with both short and longterm memory and an underlying sense of guilt for the loss experienced in Vietnam. It was noted that after 13 session of treatment the Veteran’s symptoms remained the same with the exception of reduced levels of irritability and no recent outburst of unprovoked anger. An October 2014 VA treatment record noted an initial treatment plan was established for the Veteran, which included a 10-week recovery course. He reported experiencing nightmares and flashbacks, along with difficulty falling or staying asleep, irritability or anger, feeling “jumpy” when hearing a loud noise and always feeling on guard. He denied suicidal ideations, but reported homicidal ideations with no plan. Another October 2014 treatment report included primary symptoms of anxiety, easily startled by loud noise, irritability, easily angered, lack of patience, difficulty sleeping, depressed mood at times, re-experiencing events when triggered, short term memory loss, and isolation from social situations. The Veteran also reported difficulty with patience with his spouse at times as well as having problems in his relationships with his four children. A February 2015 VA psychological report noted he had a difficult time responding to questions about what brought him in for treatment. He had significant fears about current memory functions and reported many PTSD symptoms. He reported using memory aids and worrying about Alzheimer’s disease or dementia. He was unable to think of what would make his life better and a follow up appointment was scheduled. No suicidal or homicidal ideations were indicated. VA psychotherapy group records from Yoga for Warriors dated March 2015 through May 2015 noted the Veteran appeared oriented in all spheres and had no abnormalities in speech, behavior, or thought processes. He did not display any suicidal or homicidal ideation or behavior. It was noted he had lingered after class to chat with the instructor. In a July 2017 statement the Veteran’s spouse, a registered nurse, noted his struggle with being able to financially support his family and with gainful employment had led to family disharmony and times of embarrassment by his behavior. She reported that he had unprovoked outbursts of anger and reacted to loud noises by acting startled and jumping. He had difficulty sleeping through the night and was overly suspicious of others and his surroundings. She stated he preferred to remain at home and not venture outside and that their family and friends were sometimes in fear of provoking an anger outburst. It was her opinion that his PTSD had prevented him from maintaining full-time employment. VA examination in August 2017 included a diagnosis of PTSD and found that the Veteran’s level of occupational and social impairment was best described as an 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 reported he had been married since 1964 and described the marital relationship as okay. He stated that he had good relationships with three of his children, but that the relationship with one of his children was challenging. He reported having limited contact with family members and having three friends that he seldom sees. He stated he enjoyed working out and taking care of his home. He reported he sometimes traveled with his spouse. The examiner noted the Veteran’s PTSD symptoms included anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. A mental status examination was noted to have revealed an alert and attentive individual who showed no evidence of excessive distractibility and tracked conversation well. His orientation was intact for person, time, and place and there was no abnormality of gait, posture, or deportment. Speech functions were appropriate for rate, volume, prosody, and fluency, with no evidence of paraphasic errors. Vocabulary and grammar skills were suggestive of intellectual functioning within the average range. His attitude was open and cooperative. Mood and affect were within normal limits during the beginning of the evaluation, but the Veteran became frustrated during the latter part of the evaluation stating that his spouse should have been allowed in the interview. His memory functions were insecure with respect to immediate and remote recall of events and factual information. Thought process was intact, goal oriented, and organized and his thought content revealed no evidence of delusions or paranoia. There was no reported suicidal or homicidal ideation/intent and no evidence of a perceptual disorder. Level of personal insight appeared to be fair and social judgment was insecure. In a January 2018 statement the Veteran reported that his memory was significantly impaired by his PTSD and that he experienced increased anxiety. He reported he was suspicious of everyone and easily stressed. He reported he often stayed awake at night with his stomach turning due to anxiety. He also stated that his service-connected tinnitus, hearing loss, and left elbow disabilities contributed to his inability to work. A March 2018 private vocational assessment found the Veteran had been unable to secure and follow substantially gainful employment due to his service-connected PTSD since at least 2010 when he was terminated from his employment. It was noted that he had been unable to interact appropriately with others in a workplace setting and unable to sustain concentration and focus to complete work tasks in accordance with the demands of competitive employment. His bilateral hearing loss, tinnitus, and left elbow dislocation/fracture with contracture deformity had more likely than not further precluded him from securing and following substantially gainful employment since at least 2010. The Veteran’s PTSD symptoms were found to cause anxiety, intrusive thoughts, hypervigilance, depression, lack of motivation, daytime drowsiness from poor sleep, difficulty sustaining concentration, and memory deficits. His symptoms of anger, irritability, frustration, and inability to relate well to others prevented him from establishing and maintaining effective workplace relationships. The examiner noted the Veteran had completed college with a degree in marketing and that he had retired from the Army reserves in 2001 as a major general. He had been employed as a pharmaceutical sales representative until 1994 when he was terminated after a confrontation with his supervisor and that he was engaged in part-time employment inventorying pharmaceutical samples until 2010 when he was terminated after an argument with his supervisor. It was noted that the Veteran could be inflexible in his thinking and verbally confrontational with those who disagree with him, but that he reported his spouse tolerated him. Based upon the evidence of record, the Board finds that the assignment of a higher (100 percent) rating is not warranted, as a total social impairment is simply not demonstrated. The evidence of record does not demonstrate such impairment due to symptoms including gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. It is also significant to note that the Veteran is shown to have been married for many years and to have good relationships with most of his children. The evidence shows that he has reported having traveled and maintained relationships with a few friends. Such belies the notion of the Veteran having a total social impairment. Therefore, the claim for a schedular rating in excess of 70 percent for PTSD must be denied. The theory of entitlement to a higher rating under the provisions of 38 C.F.R. § 3.321(b)(1) has not been specifically sought by the Veteran nor reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). 2. Entitlement to a total disability rating due to individual unemployability as a result of service-connected disability (TDIU) A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single 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. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the required percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. 38 C.F.R. § 4.16(a) (2018). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a) (2018). A Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19 (2018). The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). TDIU is to be awarded based on the judgment of the rating agency. Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran contends, in essence, that he is unemployable due to his service-connected disabilities. In his March 2012 TDIU application he reported he had completed college and that he last worked part-time as a pharmaceutical auditor. Service connection is established for PTSD (70 percent), left elbow dislocation/fracture with contracture deformity (10 percent), tinnitus (10 percent), and bilateral hearing loss (0 percent). A combined 80 percent rating is assigned from October 18, 2010. The Veteran met the schedular criteria for a TDIU effective from the date of receipt of his PTSD claim. See 38 C.F.R. § 4.16(a). The Board finds the evidence is persuasive that the Veteran is not capable of substantially gainful employment due to his service-connected disabilities. The VA and private medical opinions demonstrate that his service-connected disabilities preclude gainful employment. Therefore, entitlement to a TDIU is warranted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Douglas, Counsel