Citation Nr: 18144922 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-10 055 DATE: October 25, 2018 ORDER An initial evaluation of 50 percent for posttraumatic stress disorder is granted. Entitlement to a total disability rating based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s posttraumatic stress disorder (PTSD) is productive of occupational and social impairment with reduced reliability and productivity. 2. The Veteran is able to secure and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 50 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for entitlement to a TDIU have not been satisfied. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1971 to April 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was submitted in March 2018 for the issue of service connection for sleep apnea. A Statement of the Case has not been issued at this time. Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). As the NOD initiates the appellate process, the Board is allowed to take limited jurisdiction of these issues for the sole purpose of directing the RO to issue a SOC along with information about what is needed to perfect the appeal of these claims. Manlincon v. West, 12 Vet. App. 238 (1999). Because the RO may still be taking action in development of the claim, the Board will not take jurisdiction for the sole purpose of remanding the claim for the issuance of a Statement of the Case. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a total disability rating based on individual unemployability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, a TDIU was raised by the Veteran and was adjudicated in a January 2018 rating decision. Accordingly, the TDIU claim is before the Board as a component of his claim for an increased evaluation. Id. In the course of the appeal, the Veteran’s representative generically preserved all errors with the duty to assist and other due process errors. Neither the Veteran nor his representative have raised any other issues with the duty to notify or duty to assist. 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.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Initial evaluation in excess of 30 percent for posttraumatic stress disorder. The Veteran submitted a claim of service connection for posttraumatic stress disorder in May 2009. This appeal arises from the initial rating assigned. The Veteran has been assigned a 30 percent rating for his posttraumatic stress disorder (PTSD) pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. All psychiatric disorders are evaluated under the General Rating Formula for Mental Disorders, which provides for a 30 percent rating is warranted when there is 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). 50 percent rating is warranted 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; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation, neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Use of the term “such symptoms as” in § 4.130 indicates that the list of symptoms that follows is non-exhaustive, meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The record includes Global Assessment of Functioning (GAF) scores that clinicians have assigned. The GAF was a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). Clinicians dealing with mental health issues currently use the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Given the procedural posture of this appeal, the DSM-5 applies. See 80 Fed. Reg. 14308 (Mar. 19, 2015) (DSM-5 applies to claims received by VA or pending before the agency of original jurisdiction on or after August 4, 2014). The United States Court of Appeals for Veterans Claims (Court) noted that the DSM-5 eliminated GAF scores because of their conceptual lack of clarity and questionable psychometrics in routine practice, and further stated that an adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness. The Court explained symptoms should be the primary focus when assigning a rating for a psychiatric disorder and clarified that the use of numerical GAF scores as a shortcut for gauging psychiatric impairment would be error. Further noted was that the adequacy of medical examinations has never depended upon the use or inclusion of GAF scores. Golden v. Shulkin, U.S. Vet. App. No. 16-1208 (February 23, 2018). Here, the record shows that the Veteran’s service connection for PTSD is based on an in-service stressor of having been battered by a group of African American males. Post-service medical records note that the Veteran is frequently triggered by interactions with black males. He attempted suicide in the of 2011 in which he tried to drive his truck into a river. See October 2011 private treatment records. He was stopped by police officers, at least one of whom was an African American male. When they tried to arrest him, he assaulted them. Treatment records, both private and VA, show the Veteran has had a significant amount of anxiety throughout the appeal period. He also experiences fairly sustained depression. He had not attempted suicide or had suicidal or homicidal ideations or thoughts of self-harm to any material degree since the 2011 attempt. A chronological review of the salient evidence further illustrating the severity of the Veteran’s disorder follows. October 2011 private treatment shows “a lot of anxiety.” He reported he was fine with African American males at the Post Office. His wife said the situation can get to the point where the Veteran does not want to go out of the house. However, it was noted that, after repeated exposure to a place, he becomes more comfortable being there. The record reported the Veteran went drinking and was pulled over for DWI. He then assaulted the police officer who pulled him over. The medical record further noted that the Veteran’s wife reportedly has to make him eat, and that he can have trouble falling asleep. The Veteran reported being poisoned five years prior for which he was hospitalized in a coma. His wife appeared not to know about the poisoning. She just thought he was sick to his stomach. His wife said that he was fine with friends, but did not ever want to go out and see them. The mental status examination showed anxious behavior, anxious and sad mood, and clear sensorium. He denied suicidal and homicidal ideation. There was no clear evidence of delusions, with the possible exception of thinking he was poisoned. Judgment was fair to poor. A December 2011 statement from a private counselor who had treated the Veteran from May 2009 through October 2011 reported the Veteran suffers from triggers, flashbacks, and nightmares and is hypervigilant. “It is not [the Veteran’s] nature to become violent at all,” the counselor commented about the assault on the police officer. The counselor opined that the Veteran will recover completely with appropriate therapy. A February 2012 progress note showed the Veteran was “doing great,” doing volunteer work at a clinic whose patients were 80 percent African American. The Veteran reported he had become close to an African American male. April 2012 private treatment records note the Veteran was afraid of driving for fear of getting into trouble. The records note the presence of memory lapses and the Veteran “zooming out.” At the time he denied difficulty getting back to sleep after waking to urinate. Lowered motivation was present. The mental status examination showed depressed mood, appropriate affect, decreased interest and pleasure, lowered concentration, and fair insight. In June 2012 private treatment, the Veteran’s wife said he continued to be anxious and depressed, he continued to lack motivation, and he would get confused, agitated and argumentative. She reported it had been awhile since he volunteered at the food bank. An October 2012 VA treatment record noted that in 2009, he was in a diabetic coma, and had been hospitalized numerous times for chronic pancreatitis. November 2012 VA treatment records note the attempted suicide the previous year. Symptoms included intolerance for groups of people, staying at home most of the time, wearing a hat and pulling it down to avoid looking at people. His mood was okay. He was sleeping well. Stress was reported between the Veteran and his wife due to selling a second home. The mental status examination showed a neat appearance. Speech was rambling but calm. Mood was calm and anxious. Thoughts were circumstantial. Hallucinations were not evident. He denied homicidal and suicidal ideation. Concentration was impaired. Memory was impaired. Insight and judgment were impaired. It was noted his last suicide attempt was October 15, 2011. A November 2012 VA mental disorders examination was conducted. The report of examination shows that the Veteran was a postal service employee for 36 years, retiring in 2007 because he was eligible. The Veteran had been married for over 30 years and reportedly has great relationships with his two children. The examiner concluded that the Veteran’s PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The examiner noted many inconsistencies in the Veteran’s responses during the examination, in particular with church and volunteer activities. The Veteran reported wanting to find work, but being unable to. Prior to the 2011 suicide attempt, the Veteran would get into fights several times per week. Symptoms for VA rating purposes were reported as depressed mood, anxiety, suspiciousness, obsessional rituals which interfere with routine activities, and persistent delusions or hallucinations. The examiner explained that delusions appear to be paranoia. The examiner further explained that he appears to have generalized fears and anxieties from individual experiences to groups. For example, he says he was attacked by African American men, so he now reports being hypervigilant to danger from all African American people. Similarly, he dislikes everything to do with the government because of a perceived wrong in service. A January 2013 VA mental health treatment note reported that his Catholic faith is a strong support. A February 2013 statement from the Veteran’s private treating psychiatrist regarding the period since October 2011 showed the Veteran had a brief period of improvement in February 2012, but overall continued to struggle with depression and anxiety. The statement reported that during a 16-month period, he struggled with depressed mood, poor motivation, poor energy, anxiety, difficulty following medication directions, and difficulty maintaining relationships. The examiner noted the Veteran spends the majority of his time sitting in his home because he has no motivation or energy. An August 2014 VA treatment record noted the Veteran experiencing high anxiety from listening to an African American man speak about his military service. The Veteran was also hostile towards VA. A September 2014 VA treatment record showed the Veteran became triggered by a person in the waiting room, and was unable to tolerate staying for the appointment. He reported believing very strongly that someone was trying to kill him, perhaps by poisoning him. He related being in a coma for two and one-half months and believing that this was a direct consequence of being poisoned (although apparently a toxicology consult was inconclusive). He felt significantly anxious at the prospect of this appointment, wondering if he would see anyone who could trigger him. He was able drive, as long as he does not actually look at faces. He had tearful spells at times. He ruminated a lot about the past. During a typical day he would look after his bird feeder. He stayed at home as much as he could. Sometimes, though, he would spend time at his son’s place out in the country—one place other than his own home where he feels at peace. The mental status examination showed psychomotor slowing; limited eye contact, guardedness, depression, nervousness, and stable and blunted affect. There were no hallucinations, thought disorder, paranoid ideations, or homicidal or suicidal ideation. Impulse control and judgment were fairly good. The Veteran reported preferring to be at home, because his anxiety and panic attacks keep him from doing other things that he would like. He reported his anxiety level was very high through the night after a meeting with the VA clinician. An October 2014 VA mental health note reported suicide attempts were many years ago. He denied intent to self-harm and denied suicidal thoughts. Depression, sleep disturbance, decreased cognition, anxiety, intrusive thoughts/memories, ruminative thoughts, flashbacks, and hypervigilance were present. The Veteran reported fearing that someone would kill him. The level of impairment was deemed moderate. A November 2014 VA mental health medication note showed the Veteran doing well, being overall at peace, and no longer holding onto bitterness or resentment. The Veteran was still uncomfortable in crowded settings. It was reported that his wife said she wanted to leave him. A February 2015 VA treatment note showed the Veteran reporting distress at not being able to keep relationships after a trip to visit his family did not go well. He asserted that his family did not understand him. The Veteran preferred to spend time outside in order to find peace, to the dislike of the family. The clinician encouraged the Veteran to continue to spend time outside to decrease his anxiety/stress level and help him cope. A September 2016 note from the Veteran’s wife stated that the Veteran has constant depression possibly made worse since 2011. He had no desire to leave the porch. He would procrastinate, was extremely unsociable, smoked constantly, and had no self-worth since retiring. He needs volunteer work but is too afraid. He has an extreme fear of leaving home and would not join a family vacation. An October 2016 VA mental health medication management note reflected trouble with anger, intrusive memories, and the inability to stand being around people. A December 2017 VA mental health treatment note showed the Veteran not going anywhere or doing anything and having been that way for many years. The note reported the Veteran was living with his wife of over 35 years. He attended church. The mental status examination showed mood was depressed, and there were no hallucinations, paranoid ideations, or suicidal and homicidal ideations. Recurrent intrusive thoughts of the traumatic experience, irritability, hypervigilance, and social isolation were present. Strengths were his family support, and spiritual support/community resources. Based on the evidence of record, the Board finds that an evaluation of 50 percent is warranted. Symptoms of depression, anxiety, and social isolation were moderate, but persistent. The Board notes that suicidal ideation is contemplated by the 70 percent criteria, and self-harm is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Suicidal ideation alone, may cause occupational and social impairment with deficiencies in most areas. Id. Since the 2011 suicide attempt, the Veteran generally denied thoughts of self-harm and suicidal ideation. The belief that someone was trying to kill him was present intermittently through October 2014, but in later years, the Veteran did not express that belief and seemed to find a degree of peace. The Veteran’s 2011 suicide attempt and his belief that someone tried to poison him show more severe symptoms, although the suicide attempt was an isolated event. This incident of self-harm is not a symptom that causes him to be a persistent danger to himself or others, as it was one instance over an appeal period lasting many years. A single incident is not of the frequency, severity, or duration needed to result in both total occupational and total social impairment, and does not support a 100 percent rating. A 70 percent or 100 percent evaluation is not warranted because the Veteran’s symptoms were often described as moderate. The Veteran was able to maintain a long term, mostly stable relationship with his wife. He reported having a great relationship with his family, although there was a report of one disappointing visit. Church seemed to be a consistent support for him. Socially, therefore, he was not totally deficient, although he was fairly isolated. Symptoms affecting occupational impairment included panic attacks, impaired concentration and memory, social isolation, lack of motivation. However, the Board finds the most probative evidence shows that these impairments were moderate. See October 2014 mental health note. Again, the suicide attempt was isolated and the belief that someone was attempting to kill him did not appear to be persistent and severe enough to disturb the clarity of his thinking for occupational purposes. Based on the foregoing, deficiencies in most areas is not present and so a 70 percent is not warranted. Further, as the Veteran’s symptoms do not cause total social impairment, as evidenced by his positive relationships with his family, a 100 percent rating is not warranted. The Veteran’s attorney contends that an October 2016 disability benefits questionnaire (DBQ) by Gateway Psychological services noted occupational and social impairment with deficiencies in most areas, and that persistent delusions, grossly inappropriate behavior, and disorientation were present. The attorney argued that these symptoms place the Veteran squarely in the 100 percent category. The Board found no such DBQ report on file. In August 2018, the Board sent the Veteran and his attorney a letter informing them that the referenced DBQ was not associated with the claims file, and neither was a referenced statement from the Veteran’s wife and records from a private care provider. The Board suggested that his attorney submit all relevant documents to the Board. No response was received. The letter informed them that without a response, the Board will assume that they did not want to submit the evidence. Without the referenced evidence to review, the Board cannot analyze the specific findings and places little probative weight on the reported conclusion in the DBQ without the underlying record. Additionally, no probative weight can be assigned to the asserted statement from the Veteran’s wife and private records. 2. Entitlement to a TDIU. The Veteran seeks a total disability rating based upon TDIU. Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, 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. 38 C.F.R. § 4.16(a). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Individual unemployability must be determined without regard to any non-service connected disabilities or the veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran has been awarded service connection for the following disabilities: renal dysfunction associated with diabetes mellitus, evaluated as 60 percent disabling effective February 6, 2018; bilateral hearing loss, evaluated at 40 percent effective November 26, 2012; PTSD, now evaluated at 50 percent disabling effective May 14, 2009; diabetes mellitus, evaluated at 20 percent disabling effective May 14, 2009; right upper extremity peripheral neuropathy associated with diabetes mellitus, evaluated at 20 percent disabling, effective February 6, 2018; left upper extremity peripheral neuropathy associated with diabetes mellitus, evaluated at 20 percent disabling, effective February 6, 2018; right lower extremity peripheral neuropathy associated with diabetes mellitus, evaluated at 20 percent disabling, effective February 6, 2018; left lower extremity peripheral neuropathy associated with diabetes mellitus, evaluated at 20 percent disabling, effective February 6, 2018; and, tinnitus, evaluated at 10 percent disabling, effective May 14, 2009. The Veteran’s combined evaluations, after applying the increased evaluation awarded in this decision, are 60 percent effective May 14, 2009, 80 percent effective November 26, 2012, and 100 percent effective February 6, 2018. The threshold for a schedular evaluation has been met only as of November 26, 2012. An extraschedular TDIU may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). In such case, the Board must refer the claim to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16 (b) (2017). The evidence shows that the Veteran was a retired inspector for the Occupational Safety and Health Administration (OSHA). He retired due to breathing problems. See January 2010 VA examination. A March 1983 letter from the Veteran showed that he had been employed as a criminal investigator and a disc jockey. He had to give those up due to hearing loss. He was then employed as a computer clerk for the U.S. Postal Service. A May 2009 clinical screening form shows the Veteran had two years of college. In a February 2010 letter, the Veteran stated that his secluded life due to PTSD and hearing loss is very handicapping, restricting him from seeking any type of employment. The November 26, 2012, VA mental disorders examination report noted that the Veteran was a prison guard for six months, an investigator for one year, and a postal service employee for 36 years. The report stated that the Veteran retired from the postal service in 2007 because he was eligible for retirement. He has not worked since and would like to find work but has been unable to. With respect to the period prior to November 26, 2012, PTSD, diabetes mellitus, tinnitus, and hearing loss were the applicable service connected disorders. PTSD was shown to reduce reliability and productivity as discussed in depth above. This does not mean, however, that occupational impairment was severe enough to preclude securing and maintaining substantially gainful employment. Diabetes mellitus’ effects are shown through the March 2018 VA examination. Therein, the Veteran’s physical strength was not lost due to diabetes mellitus. The examiner found the Veteran’s ability to perform sedentary activities of employment was mildly to moderately impaired. The Veteran’s ability to perform physical activities of employment was moderately impaired. The Board concludes that, during the period prior to November 26, 2012, there is not enough evidence to find that the Veteran was unable to secure and maintain substantially gainful employment in any occupation. The Veteran retired due to age, or possibly due to nonservice-connected breathing problems. This is strong evidence that service-connected disorders did not preclude him from employment in the occupation he previously held. Although there are moderate physical effects on employment from diabetes mellitus, and reduced reliability due to PTSD, with difficulty hearing due to hearing loss and tinnitus, a sedentary or semi-sedentary occupation without contact with the public would not be precluded. By sedentary employment, the Board means employment in which sitting is possible for at least 6 hours in an eight-hour day, but may involve some walking or standing. Semi-sedentary would involve an approximate equal mix of sitting and standing, neither of which would be required for long durations at a time. Exertion of no more than 20 pounds of force infrequently may occur. The Board finds that occupations such as office clerks, file clerks, library assistants, information and record clerks, etc., would enable the Veteran to maintain substantially gainful employment considering his extensive work experience, yet limited education. With respect to the period beginning November 26, 2012, but prior to February 6, 2018, hearing loss, tinnitus, diabetes mellitus and PTSD were the relevant service-connected disorders. A December 2009 VA audiology examination showed “significant effects” on the Veteran’s hearing. A November 2012 VA audiology examination noted overall functional impairment from hearing loss to be difficulty communicating with his wife resulting in arguments, requiring the television to be too loud for the tolerance of others, and difficulty communicating over the telephone. The Veteran’s tinnitus interferes with his ability to hear and understand. The previous analysis applies in this case. Difficulty hearing can be overcome by written communication or hearing aids in the occupations listed above. Thus, there is minimal additional effect when combined with the effects of the other service-connected disabilities. As hearing aids and written communication are reasonable and widely used accommodations, their use would not constitute a protected environment. With respect to the period beginning February 6, 2018, the additional disabilities are the complications from diabetes mellitus. The March 2018 VA examination with respect to diabetic neuropathies found the Veteran’s ability to perform sedentary activities of employment to be mildly to moderately impaired. His ability to perform physical activity of employment was moderately impaired. An examination related to his kidney disability concluded there was no impact on his ability to work. A VA examiner also found that erectile dysfunction did not affect the Veteran’s ability to work. Again, the Board concludes that the Veteran is not precluded from securing and maintaining substantially gainful employment. The Board does not find enough evidence to hold that typing or the use of hands would be impaired severely enough to preclude the clerical employment identified above. In so finding, the Board recognizes the March 2018 VA examination results of decreased sensation in the “hand/fingers.” The incomplete paralysis found was mild, thus, supporting the Board’s conclusion as to the hands. As to the lower extremities, the sedentary employment described above would avoid interference to a significant degree by neuropathies of the lower extremities. Ultimately, the Board finds that the Veteran has not established his inability to secure and maintain substantially gainful employment. Accordingly, no referral to the Director of Compensation Service is required for the extraschedular portion of the appeal period and a schedular TDIU is denied. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Rocktashel, Counsel