Citation Nr: 18145560 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-29 695 DATE: October 29, 2018 ORDER A 70 percent disability rating for posttraumatic stress disorder (PTSD), but no higher, is granted effective March 12, 2012, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted effective March 12, 2012, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for right ear hearing loss is remanded. FINDINGS OF FACT 1. The evidence is equipoise as to whether the PTSD since March 12, 2013, has been manifested by an occupational and social impairment with deficiencies in most areas due to obsessional rituals that interfere with routine activities, inability to establish and maintain effective relationships, and neglect of personal appearance and hygiene. 2. The weight of evidence shows that the PTSD underwent an increase in disability during the one-year period prior to March 12, 2013. 3. The evidence is equipoise as to whether the PTSD from March 12, 2012, to March 11, 2013, was manifested by an occupational and social impairment with deficiencies in most areas due to obsessional rituals that interfere with routine activities, inability to establish and maintain effective relationships, and neglect of personal appearance and hygiene. 4. From March 12, 2012, to March 11, 2013, the Veteran was service-connected for PTSD only. 5. From March 12, 2012, to March 11, 2013, the service-connected PTSD was rated 70 percent disabling. 6. The evidence is in equipoise as to whether the Veteran’s service-connected PTSD rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience from March 12, 2012, to March 11, 2013. 7. Since March 12, 2013, the Veteran has been service-connected for PTSD, tinnitus, and left ear hearing loss. 8. Since March 12, 2013, these service-connected disabilities have been rated 70 percent disabling combined with PTSD being 70 percent disabling. 9. The evidence is in equipoise as to whether the Veteran’s service-connected disabilities have rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience since March 12, 2013. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran’s favor, the criteria for a 70 percent disability rating for PTSD since March 12, 2012, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for entitlement to TDIU since March 12, 2012, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1966 to September 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed his claim for an increased rating for PTSD on March 12, 2013. His claim for an increased rating for PTSD is considered a claim for TDIU because his counsel asserted in a June 2016 VA Form 9 that he is unemployable due to PTSD. Rice v. Shinseki, 22 Vet. App. 447 (2009). Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. In an April 2016 rating decision, the RO granted service connection for left ear hearing loss effective March 12, 2013, and assigned a zero percent disability rating effective that same date. The RO also assigned a 30 percent rating for PTSD effective March 12, 2013. In April 2017, the Veteran filed a notice of disagreement with the effective date of the grant of service connection for left ear hearing loss, the assignment of a zero percent disability rating for left ear hearing loss, the assigment of a 30 percent disability rating for PTSD, and the effective date for the assignment of a 30 percent disability rating for PTSD. In a December 2017 letter, the RO noted that it was not accepting the notice of disagreement as to the disability rating for PTSD. As the increased disability rating is not the maximum rating available for this disability, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). According to the electronic Veterans Appeals Control and Locator System (VACOLS), the RO has acknowledged the receipt of the notice of disagreement and additional action is pending on the issue of entitlement to an earlier effective date for the assignment of a 30 percent disability rating for PTSD. Given that the Board is considering whether an increased rating is warranted for PTSD in the one-year period prior to the date of claim, the earlier effective date claim is part and parcel of the increased rating issue on appeal and not a separate issue subject to a pending notice of disagreement. According to VACOLS, the RO has also acknowledged the receipt of the notice of disagreement on the left ear hearing loss matter and additional action is pending on the issues of entitlement to an earlier effective date for the grant of service connection for left ear hearing loss and entitlement to a compensable rating for left ear hearing loss. Thus, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a notice of disagreement had not been recognized. As VACOLS reflects that the NOD has been recognized and that additional action on the NOD is pending at the RO, Manlincon is not applicable in this case and the issues of entitlement to an earlier effective date for the grant of service connection for left ear hearing loss and entitlement to a compensable rating for left ear hearing loss are not before the Board. 1. Entitlement to increased ratings for PTSD, currently rated as 30 percent disabling since March 12, 2013, and zero percent disabling prior to March 12, 2013 The Veteran and his counsel have not raised any issues with the duty to notify or duty to assist except for his counsel arguing in the June 2016 VA Form 9 that a March 2016 VA examiner did not adequately address whether the major depressive disorder is related to active service. 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 duty to assist argument). The March 2016 VA examiner opined that it is at least as likely as not that the major depressive disorder was caused by or the result of the PTSD. Moreover, the VA examiner stated that it was not possible to differentiate what symptoms are attributable to each diagnosis. As the Board will be attributing all psychiatric symptomatology to the service-connected PTSD, an addendum to the VA examination addressing whether the major depressive disorder is related to active service is unnecessary. Governing law and regulations PTSD is evaluated under the general rating formula for mental disorders. Under those criteria, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. 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 effective work and social relationships. Id. A 70 percent rating is 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. Id. A 100 percent rating is assigned 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; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The Board notes that effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the DSM -IV and replaced them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In September 2016, the RO certified the appeal to the Board and as such, the claims for increased ratings for PTSD and TDIU are governed by DSM-IV. Global assessment of functioning (GAF) scores are assigned based on a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness.” See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing the DSM-IV, p. 32). A GAF score from 70 to 61 indicates some mild symptoms (e.g., depressed mood or mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well and has some meaningful relationships. A GAF score from 60 to 51 indicates 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, unable to keep a job). See 38 C.F.R. § 4.130 (2014) (incorporating by reference the VA’s adoption of the DSM-IV, for rating purposes). Analysis In a May 1987 rating decision, the RO granted service connection for PTSD and assigned a zero percent disability rating. On March 12, 2013, the Veteran filed his claim for an increased rating. In addition to the diagnosis of PTSD, the medical evidence shows diagnoses of major depressive disorder, generalized anxiety disorder, obsessive compulsive disorder, and antisocial personality disorder. The Board is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In fact, the March 2016 VA examiner opined that it is at least as likely as not that the major depressive disorder was caused by or the result of the PTSD. The Board will therefore attribute all reported psychiatric symptomatology to the Veteran’s PTSD. Private treatment records reflect that in January 2013 the Veteran’s treating psychologist assigned a GAF score of 60 for current impairment and for the highest level of functioning for the past year. In February 2013, the treating psychologist assigned a GAF score of 55 for current impairment and a GAF score of 60 for the highest level of functioning for the past year. In a February 2013 review PTSD disability benefits questionnaire, the treating private psychologist assigned a GAF score of 60 for current impairment. The psychologist noted that the PTSD was manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. The psychologist noted that the Veteran had obsessional rituals that interfere with routine activities, inability to establish and maintain effective relationships, and neglect of personal appearance and hygiene. The RO noted that the medical professional did not identify his credentials in the questionnaire. Private treatment records, however, reveal that the medical professional is a limited license professional in the state of Michigan and thus a psychologist. Therefore, the Board may give probative weight to the treating psychologist’s findings. Private treatment records reflect that in April 2013, the psychologist assigned a GAF score of 60 for current impairment and impairment over the past year. In October 2013, a treating social worker assigned a GAF score of 65 for current impairment and impairment over the past year. In February 2014, that social worker assigned a GAF score of 70 for current impairment and impairment over the past year but by April 2014, the social worker again assigned a GAF score of 65 for current impairment and impairment over the past year. That social worker continued through March 2016 to assign a GAF of 65 for current impairment and impairment over the past year. The March 2016 VA examination report reveals that the examiner indicated that all mental disorders resulted in an occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or that the symptoms are controlled by medication. The examiner noted that the Veteran had depressed mood, anxiety, suspiciousness, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. In summary, the Veteran’s treating psychologist assigned lower GAF scores than the treating social worker and indicated in the PTSD questionnaire that the level of occupational and social impairment is manifested by deficiencies in most areas. That psychologist also noted the presence of several symptoms that are examples of a 70 percent rating. The March 2016 VA examiner noted the presence of difficulty in establishing and maintaining effective work and social relationships, an example of a symptom for a 50 percent disability rating. Given the conflicting medical evidence, the evidence is equipoise as to whether the PTSD since March 12, 2013, has been manifested by an occupational and social impairment with deficiencies in most areas due to obsessional rituals that interfere with routine activities, inability to establish and maintain effective relationships, and neglect of personal appearance and hygiene. As for whether a 100 percent disability rating is warranted during that time period, there is no evidence of any of the following: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The private treatment records, the February 2013 PTSD questionnaire, and the March 2016 VA examination report do not show these symptoms. While the private psychologist noted in the February 2013 PTSD questionnaire that the Veteran showed neglect of personal appearance and hygiene, that psychologist did not indicate that there was an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Furthermore, the VA examiner did not indicate that there was neglect of personal appearance and hygiene, much less note that there was an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran was unemployed during the time period, and the Veteran’s counsel argues in a June 2016 VA Form 9 that there is a complete absence of social relationships. No GAF score lower than 60 was assigned. Furthermore, a May 2014 private treatment record shows that the Veteran has enjoyed two of his grandchildren and has babysat them. Thus, there is no evidence of a total occupational or social impairment. In early 2013 private treatment records, the private psychologist assigned GAF scores of 65 and 60 for the highest level of functioning for the past year. Accordingly, the weight of evidence shows that the PTSD underwent an increase in disability during the one-year period prior to March 12, 2013. In the PTSD questionnaire, the private psychologist assigned a GAF of 60 for the current level of impairment and indicated that the level of occupational and social impairment is manifested by deficiencies in most areas. The psychologist noted the presence of obsessional rituals that interfere with routine activities, inability to establish and maintain effective relationships, and neglect of personal appearance and hygiene. Thus, the evidence is equipoise as to whether the PTSD from March 12, 2012, to March 11, 2013, was manifested by an occupational and social impairment with deficiencies in most areas due to obsessional rituals that interfere with routine activities, inability to establish and maintain effective relationships, and neglect of personal appearance and hygiene. As for whether a 100 percent disability rating is warranted during that time period, there is no evidence of any of the following: 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 or minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The private treatment records and the February 2013 PTSD questionnaire do not show these symptoms. The Veteran was unemployed during the time period. Nonetheless, no GAF score lower than 60 was assigned. Furthermore, 2012 private treatment record shows that the Veteran helped do cleanup work at a local restaurant to maintain a social connection. Accordingly, there is no evidence of a total occupational or social impairment. 2. Entitlement to TDIU Governing Law and Regulations Total disability ratings for compensation based on individual unemployability 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 without regard to advancing age 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Substantially gainful employment suggests a living wage. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore v. Derwinski, 1 Vet. App. 356, 358-59 (1991). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The simple fact that a claimant is currently unemployed or has difficulty obtaining employment is not enough. A high rating in and of itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993) (A high rating is recognition that the impairment makes it difficult to obtain or keep employment.). Analysis From March 12, 2012, to March 11, 2013, the Veteran was service-connected for PTSD only. From March 12, 2012, to March 11, 2013, the service-connected PTSD was rated 70 percent disabling. Since March 12, 2013, the Veteran has been service-connected for PTSD, tinnitus, and left ear hearing loss. Since March 12, 2013, these service-connected disabilities have been rated 70 percent disabling combined with PTSD being 70 percent disabling. This makes him eligible for consideration under 38 C.F.R. § 4.16(a) since March 12, 2012. A February 1987 VA examination report reveals that the Veteran only has a high school eduction. The March 2016 VA PTSD examination report reflects that he retired in 2007 after a career of working on an assembly line. The Veteran reported that he tried to work at other places but that his felony conviction disqualified him from other jobs. In the February 2013 review PTSD disability benefits questionnaire, the treating psychologist assigned a GAF score of 60 for current impairment. The psychologist noted that the PTSD was manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. The psychologist noted that the Veteran had obsessional rituals that interfere with routine activities, inability to establish and maintain effective relationships, and neglect of personal appearance and hygiene. The March 2016 VA examiner stated that all mental disorders resulted in an occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or that the symptoms are controlled by medication. The examiner, however, noted that the Veteran had difficulty in establishing and maintaining effective work and social relationships. The March 2016 VA audiological examination report shows that the Veteran had difficulty hearing speech, especially in the left ear. The examiner indicated that the tinnitus did not impact ordinary conditions of daily life, including the ability to work. Private treatment records reveal that the Veteran assists with cleanup duties at a local restaurant. There is no indication that he earns enough money doing those tasks, assuming that he is even paid, earn a living wage. In other words, there is no evidence that any his income from that alleged employment exceeded the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Given the findings in the February 2013 PTSD questionnaire, the evidence is in equipoise as to whether the Veteran’s service-connected PTSD rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience from March 12, 2012, to March 11, 2013. Given the findings in the February 2013 PTSD questionnaire and the evidence of hearing impairment, the evidence is in equipoise as to whether the Veteran’s service-connected disabilities have rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience since March 12, 2013. REASONS FOR REMAND 1. Entitlement to service connection for right ear hearing loss is remanded. In the June 2016 VA Form 9, the Veteran’s counsel argued that the March 2016 VA audiological examination is inadequate because of an inability to obtain or maintain a seal during tympanometry. Pursuant to the notice of disagreement on the issue of an increased rating for left ear hearing loss, the Veteran underwent another VA examination in April 2018. That examination report reflects that there was no inability to obtain or maintain a seal during tympanometry. The RO has not issued a supplemental statement of the case addressing this new evidence. In light of the other reason for remand, the RO should ask the Veteran to identify all treatment for hearing loss. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment for hearing loss and obtain any identified records. 2. Thereafter, the RO should undertake any necessary development based on the evidence obtained. 3. Thereafter, readjudicate the claim on appeal with consideration of all evidence of record. If the benefit sought in connection with the claim remains denied, the Veteran and his counsel should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cherry, Counsel