Citation Nr: 18142851 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-21 508 DATE: October 17, 2018 ORDER Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s PTSD symptoms most nearly approximated occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. The evidence is at least evenly balanced as to whether the Veteran’s service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 70 percent for PTSD have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities have been satisfied. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to November 1967. 1. Entitlement to an initial disability rating in excess of 70 percent for PTSD The Veteran seeks an increased rating for his PTSD, rated at 70 percent throughout the period on appeal. He maintains that he suffers from symptoms more severe than what is contemplated by his current disability rating. Service connection was granted and a 70 percent rating assigned in a January 2015 rating decision. Subsequent rating decisions in denied claims for increased rating and TDIU. See March 2015 and May 2016 rating decisions. New and material evidence was received prior to the expiration of the appeal period following the January 2015 rating decision; the claim has been pending since the initial claim. 38 C.F.R. § 3.156 (b). For the reasons that follow, the Board finds that a disability rating higher than the currently assigned 70 percent is not warranted. Disability evaluations are determined by comparing a veteran’s present symptoms with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, the Board will assign staged ratings for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 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. 38 C.F.R. § 4.126. The Veteran’s PTSD is currently evaluated under DC 9411, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the provisions for rating psychiatric disorders, a 70 percent disability rating requires evidence of the following: 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.)   The criteria for a 100 percent rating are: 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. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms; a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. VA had previously adopted the American Psychiatric Association: Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), for rating purposes. VA implemented DSM-5, effective August 4, 2014, and the Secretary, VA, determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). Effective August 4, 2014, VA also amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated DSM-5. However, according to the DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. The relevant medical evidence of record includes VA treatment records, as well as lay statements from the Veteran. A review of the Veteran’s VA treatment records reflects he has been prescribed medication to treat his symptoms. An October 2013 VA mental health medication management note stated the Veteran was averaging about five hours of sleep per night. He did not endorse suicidal or homicidal ideation, intensions or plans. He also did not endorse auditory or visual hallucinations. Upon mental status examination, the Veteran ambulated with a normal gait with congruent station and with no abnormal motor movements. He was well groomed and casually dressed, alert and oriented. His mood was euthymic and his affect was full. His speech was coherent, spontaneous, articulate and normal in rate and volume. His attention span and concentration were appropriate throughout the visit. His thoughts were logical, linear, and without circumstantiality or loose associations. There was also no evidence of auditory or visual hallucinations, delusional thinking, preoccupation with violence or obsessions. His fund of knowledge was average and his computation ability was intact. His remote and recent memory appeared to be intact during the visit. His insight and judgment were good. He denied any suicidal or homicidal ideations, intentions or plans. In January 2015, the Veteran underwent a VA examination where he was diagnosed with PTSD. The examiner summarized the Veteran’s level of occupational and social impairment as that with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran was noted to have symptoms that included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. Upon examination, the Veteran was observed to be alert and oriented in all spheres. His thought processes were logical and coherent. His speech was fluent, with rate and volume within normal limits. There were no psychotic processes evident or endorsed. No psychomotor agitation was observed. His level of consciousness was normal. He was cooperative and goal-directed. His affect was appropriate to content, and his judgement and insight appeared to be grossly intact. There was no acute distress observed. He denied violent ideation, thoughts, intent and plan toward either himself or others. He did report experiencing infrequent fleeting thoughts of being better off dead without any type of intent or plan. The examiner found the Veteran was capable of managing his financial affairs. In May 2015, the Veteran underwent a second VA examination where he was diagnosed with PTSD and major depressive disorder. The examiner summarized the Veteran’s level of occupational and social impairment as that with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner found that it was not possible to differentiate what portion of the occupational and social impairment was caused by each mental disorder. Upon mental status examination, the Veteran was found to be alert and oriented in all spheres. His thought processes were logical and coherent. His speech was fluent, with rate and volume within normal limits. No psychotic processes were evident or endorsed. No psychomotor agitation was observed. His level of consciousness was normal. His affect was appropriate to content, and his judgment and insight appeared grossly intact. Violent ideation, thoughts, intent and plan toward himself and others was denied. The examiner found the Veteran was capable of managing his financial affairs. In April 2016, the Veteran underwent a third VA examination to evaluate the severity of his PTSD. He was found to have diagnoses of PTSD, moderate alcohol use disorder, and recurrent major depressive disorder. The examiner summarized the Veteran’s level of occupational and social impairment as that with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner found that it was not possible to differentiate what portion of the occupational and social impairment was caused by each mental disorder. Upon mental status examination, the Veteran was found to be alert and oriented in all spheres. His thought processes were logical and coherent. His speech was fluent, with rate and volume within normal limits. No psychotic processes were evident or endorsed. No psychomotor agitation was observed. His level of consciousness was normal. His affect was appropriate to content, and his judgment and insight appeared grossly intact. Violent ideation, thoughts, intent and plan toward himself and others was denied. The examiner found the Veteran was capable of managing his financial affairs. The Veteran stated during the April 2016 VA examination that he had access to two pistols hidden in his dresser drawer. He did not have access to his other guns, adding that he gave his wife control over the weapons. During the examination, the Veteran’s wife was informed of the presence of these weapons, and she expressed her intent to place the guns under her control. A May 2018 VA mental health medication management note documented the Veteran’s reports of experiencing good mood. His medication was keeping his anxiety under control. He reported sleeping up to five hours at a time. He denied experiencing auditory or visual hallucinations. He also denied suicidal or homicidal ideations, intentions or plans. Upon examination, he moved with a normal gait with congruent station. There were no abnormal motor movements observed. The Veteran was well groomed and casually dressed. He was alert and oriented. His mood was euthymic and his affect was congruent with his mood. His speech was coherent, spontaneous, articulate and normal in rate and volume. His attention span and concentration were appropriate. His thoughts were logical, linear and without circumstantiality or loose associations. His remote and recent memory appeared to be intact. Following a review of the evidence of record, the Board finds that the Veteran’s PTSD does not support the assignment of a rating higher than 70 percent at any point during the period on appeal. The overall evidence of record reveals that the Veteran had some occupational impairment due to symptoms of his psychiatric disability. As discussed in detail above, however, the evidence of record does not reflect that the Veteran suffers from gross impairment in thought processes or communication, persistent delusions or hallucinations, or grossly inappropriate behavior. The evidence also does not reflect that the Veteran is in persistent danger of hurting either himself or others. VA medical records and the reports of VA examinations also did not show any findings or histories of near-continuous panic or depression during the appeal period, and these records also did not reflect that the Veteran has experienced obsessional rituals which interfere with his routine activities. Similarly, his speech has not been found to be intermittently illogical, obscure, or irrelevant during the period on appeal. When considering the medical evidence as a whole, the Board finds that the Veteran’s symptoms do not result in total occupational and social impairment. In this regard, the Board finds the opinions of the January 2015, May 2015 and April 2016 VA examiners to be particularly probative, as their assessment of the level of occupational and social impairment experienced by the Veteran considered the examination of the Veteran, his reported symptoms, and his past medical history. Overall, during the appeal period, the Board finds that the weight of the credible evidence demonstrates that the Veteran’s PTSD symptomatology more closely approximates the schedular criteria for the 70 percent disability rating. The Board has considered the competent statements of the Veteran as to the extent of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In addition, in evaluating a claim for an increased schedular disability rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). While the Veteran is competent to report his various symptoms, the training and experience of medical personnel makes the medical findings found in treatment notes and examinations more probative as to the extent of the disability. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995). In sum, the Board finds that a rating in excess of 70 percent for PTSD for the period on appeal is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to increased ratings. 38 U.S.C. § 5107. 2. Entitlement to a TDIU The Veteran contends that he is unemployable because of the severity of his service-connected PTSD and, therefore, entitled to a TDIU. The Board concludes that the award of a TDIU is warranted. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Factors such as employment history, as well as educational and vocational attainments, are for consideration. Id. The term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word “substantially” suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100-percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In this case, the Veteran is in receipt of a 70 percent disability rating for PTSD effective September 23, 2014. He is also in receipt of separate 10 percent ratings for hearing loss and tinnitus effective November 14, 2011. The combined rating for these service-connected disabilities is 80 percent from September 23, 2014. Thus, the Veteran satisfies the threshold minimum percentage rating requirements for a TDIU according to § 4.16(a). The central inquiry in a claim for a TDIU is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is insufficient for a grant of a TDIU. A high rating, in itself, is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a Veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The Veteran has indicated that he last worked full time in September 2014, and he became too disabled to work owing to his service-connected PTSD that same month. He reported having finished 3 years of high school and worked in maintenance for the last 10 years, missing approximately 250 days of work due to illness. See March 2015 TDIU application on VA Form 21-8940. In January 2016, a VA doctor stated that the Veteran suffered with severe anxiety which he has self-medicated for years with alcohol. Every time the Veteran either decreased or discontinued his use of alcohol, his anxiety would flare up and he would return to drinking. The VA doctor stated the Veteran has never been able to maintain any type of gainful employment due to his severe PTSD symptoms. In February 2016, a VA doctor stated that the Veteran was not likely to be able to obtain employment for a standard wage for any substantial period of time without intensive treatment. She added that there was significant evidence that he was unable to secure further employment as a result of his mental disability. His employment has historically been marginal, intermittent and limited on account of anxiety. She added that she had “no doubt that he has been unable to follow a substantially gainful occupation as a result of his PTSD.” In May 2016, a VA doctor stated that the Veteran was no longer drinking alcohol. Despite being sober, she stated that his symptoms of PTSD have not changed. She believed the Veteran would never be able to obtain gainful employment even in a state of complete sobriety. She stated that the Veteran’s previous attempts at working were always during a state of sobriety, but employment was never maintained or successful due to his chronic, unrelenting PTSD symptoms. In May 2018, a VA doctor stated that she believed the Veteran was unable to maintain any type of gainful employment due to his chronic and severe PTSD symptoms related to military sexual trauma. She added that the Veteran has never been able to maintain true employment without significant assistance from others and that employment was limited. In view of the totality of the evidence, the Board finds that the Veteran’s service-connected PTSD does as likely as not render him unemployable. His educational and occupational history reflects that he has completed three years of high school, and he has no other education or training before becoming too disabled to work. Further, the Veteran’s entire working career appears to have been devoted to maintenance work. Further, the evidence of record shows that the Veteran’s occupational history has been impeded by functional impairments caused by his service-connected PTSD. The Board finds the Veteran’s statements that his service-connected PTSD impairs his ability to perform his job to be credible. The evidence reflects that the Veteran has an employment history that is limited to labor-intensive work. The evidence does not reflect that the Veteran has ever held any other type of job. The Veteran’s statements are also corroborated by VA treatment providers.   The above discussion reflects that the evidence is at least evenly balanced as to whether the Veteran’s service-connected PTSD precludes him from obtaining or maintaining substantially gainful employment. Based on the foregoing, and affording all benefit of the doubt to the Veteran, the Board finds the criteria for TDIU have been met and the appeal is granted. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jack S. Komperda, Counsel