Citation Nr: 18145818 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 10-35 646 DATE: October 30, 2018 ORDER Entitlement to an initial evaluation of 70 percent for posttraumatic stress disorder (PTSD) prior to May 11, 2015 (excluding periods of temporary 100 percent from March 26, 2012 to July 1, 2012 and April 1, 2013 to July 1, 2013) is granted. Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) for the period beginning May 11, 2015 is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted for the period from February 5, 2008 to May 10, 2015. REMANDED Entitlement to service connection for a lumbosacral spine disability is remanded. Entitlement to service connection for a chronic headache disorder is remanded. FINDINGS OF FACT 1. For the period prior to May 11, 2015, the Veteran’s PTSD was manifested by symptoms such as irritability, increased concentration problems, difficulty getting along with others, isolationism, no interest in recreational activities, sleep problems, inappropriate behavior, heightened startle response, suicidal ideation and marital problems. 2. For the period from May 11, 2015, the Veteran’s PTSD symptoms were not manifested by gross impairment of thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation or own name. 3. For the period from February 5, 2008 to May 10, 2015, the Veteran’s service-connected psychiatric disability rendered him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. For the appeal period prior to May 11, 2015, the criteria for a rating of 70 percent for service-connected PTSD (excluding periods of temporary 100 percent from March 26, 2012 to July 1, 2012 and April 1, 2013 to July 1, 2013) have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 2. For the appeal period beginning May 11, 2015, the criteria for a rating in excess of 70 percent for a service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 3. For the period from February 5, 2008 to May 10, 2015, the criteria for a TDIU were met. 38 U.S.C. §§1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.15, 4.16, 4.18, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1968 to January 1971. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia and Winston-Salem, North Carolina. The issue of entitlement to service connection for gastritis was granted in a January 2018 rating decision. This is considered a full grant of benefits. Therefore, this issue is no longer before the Board. 1. Entitlement to an initial evaluation of 70 percent for PTSD prior to May 11, 2015 (excluding periods of temporary 100 percent from March 26, 2012 to July 1, 2012 and April 1, 2013 to July 1, 2013) Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment. 38 U.S.C. § 1155. A proper rating of the Veteran’s disability contemplates its history, 38 C.F.R. § 4.1, and must be considered from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, as here, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Under 38 C.F.R. § 4.130, Diagnostic Code 9413, a 70 percent evaluation is warranted when there is 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 work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, “[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous.” Id. The Court went on to state that the list of examples “provides guidance as to the severity of symptoms contemplated for each rating.” Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptom must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the DSM-IV and replace them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. Id. 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. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The RO certified the Veteran’s appeal, most recently, to the Board in August 2018, and therefore the claim is governed by DSM-5. The Board acknowledges that the appeal period for this Veteran begins in February 2008 and examinations conducted earlier in the appeal period, used DSM-IV. However, more recent examinations use DSM-5. The Board will review all examinations throughout the appeal period as this is most advantageous to the Veteran. For the period prior to May 11, 2015, there are few VA psychiatric examinations of record. The October 2009 VA psychiatric examination report included symptoms such as irritability, increased concentration problems, difficulty getting along with others, isolationism, no interest in recreational activities, sleep problems, inappropriate behavior, and heightened startle response. The Veteran reported having lost two marital relationships due to his symptoms. The examiner opined that his concentration problems and getting along with other affected his ability to work. A global assessment of functioning score of 61 was given which denotes mild symptoms. The January 2010 VA examination report included symptoms such as memory problems, difficulty concentrating, difficulty staying asleep, and hypervigilance. He also reported that he has 2 friends, attends church and goes fishing 3 times a month. The examiner opined that he had occasional decrease in work efficiency and intermittent periods of inability to perform occupational task due to PTSD signs and symptoms, but that he had satisfactory functioning generally. He reported that he had not worked since 2008 due to foot surgery. The Veteran’s symptoms appear more severe in the October 2009 VA examination report than the January 2010 examination report. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. The Board finds that the Veteran’s symptoms from the October 2009 VA examination more nearly approximate the criteria for a schedular evaluation of a 70 percent evaluation. Multiple marriages showing an inability to establish and maintain effective relationships and irritability. His employer later explained that was terminated due to “mental and strong medications” which suggests that his psychiatric symptoms were making it difficult for him to adapt to work. See Request for Employment Information in Connection with Claim for Disability Benefits dated in January 2010. VA treatment records also showed reports of suicidal ideation for the period prior to May 11, 2015. Suicidal ideations were noted in January 2010, April 2012, November 2012, December 2012, April 2013, and May 2012. The Veteran has also participated in two VA PTSD in-patient treatment programs for the period prior to May 11, 2015. For these reasons, the Board finds that majority of the Veteran’s PTSD symptoms for this period more nearly approximate the criteria for a schedular evaluation of a 70 percent evaluation. The Board does not find that a rating in excess of 70 percent is warranted for the entire appeal period. The Veteran does not have gross impairment in thought processes or communication, persistent delusions or hallucinations, intermittent inability to perform activities of daily living, grossly inappropriate behavior, intermittent inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives, own occupation or own name. See October 2009 VA examination; see also January 2010 VA examination; see also January 2016 VA examination; see also March 2016. The Board acknowledges that the November 2009 examiner noted that the Veteran had inappropriate behavior. He reported that the Veteran stays away from others because he has poor interaction with other. This does not appear to be grossly inappropriate behavior. The Board acknowledges the Veteran’s reports of suicidal ideation throughout the appeal period. Despite this, the majority of his symptoms are already contemplated by the 70 percent evaluation. Throughout the appeal period, the Veteran has been found repeatedly to have difficulty adapting to stressful circumstances, including work or worklike settings. A private psychologist opined that the Veteran was very unlikely to obtain or maintain suitable gainful employment due to his PTSD symptoms. See January 2015 letter. As will be described in more detail below, the Veteran is unemployability due to his PTSD. Despite this, he does have some relationships with others, including with his brother and his children, which shows that he is not totally socially impaired. See January 2016 VA examination. For these reasons, the overall disability picture shows that a 70 percent is warranted prior to May 11, 2015, but his symptoms do not more nearly approximate the criteria for a schedular evaluation of 100 percent at any time during the appeal period and a higher evaluation than 70 percent is denied. 2. Entitlement to a total disability evaluation due to unemployability due to service-connected disabilities 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. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16 (a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. The AOJ granted a TDIU for the Veteran effective May 11, 2015 due to the Veteran’s PTSD. The Veteran filed a claim TDIU that was received on December 10, 2009. The Board finds that the issue of TDIU and a higher evaluation for PTSD are intertwined. Although the AOJ granted a TDIU for the Veteran, the Board finds that whether a TDIU is warranted for the period prior to May 11, 2015 remains before the Board. Per this decision, the Veteran meets the schedular requirement under 38 C.F.R. § 4.16 for consideration of a TDIU on February 5, 2008 as he is now in receipt of a 70 percent evaluation for PTSD. Having reviewed the record, the Board has determined that, from February 5, 2008, the date of the Veteran’s claim for service connection for PTSD, TDIU is warranted. The Veteran reported being unable to work since April 15, 2009 due to PTSD. See Veteran’s Application for Increased Compensation Based on Unemployability dated in December 2009; see also Veteran’s Application for Increased Compensation Based on Unemployability dated in January 2016. The Veteran’s employer explained that he was terminated June 3, 2009, but the employer also noted that the Veteran was only working part-time and had made only $8,205.00 in the last 12 months which is below the poverty threshold. Therefore, it does not appear that the Veteran has not had substantially gainful employment at any time during the appeal period. As to whether the Veteran is unemployable due to his service-connected disabilities, the Board has reviewed the opinions of record. The Social Security Administration provided the Veteran an examination in October 2009. See Mental Residual Functional Capacity Assessment dated in October 2009. The psychologist opined that the Veteran would be able to sustain the basic demands of unskilled work that did not involve much social contact. In January 2015, a private psychologist reviewed the record and opined it was very unlikely that the Veteran could obtain or maintain suitable gainful employment. See January 2015 letter. The psychologist noted that the Veteran’s treatment began in May 2009 and that the Veteran has attended VA classes with no improvement. The psychologist opined that the Veteran’s PTSD had worsened over time due to poor treatment. The Veteran’s employer noted that the Veteran had been terminated due to “mental and strong medications” insinuating that mental problems impacted the Veteran’s ability to work. The November 2009 examiner explained that although the Veteran had been unable to work since January 2009 due to medical issues and was receiving Social Security Disability, the Veteran’s increased irritability, increased concentration problems and difficulty getting along with others affected his ability to work. The examiner continued that the Veteran was quite isolative and had few friends. See November 2009 VA examination. In weighing the lay and medical evidence of record, the Board finds that the evidence is in relative balance as to whether the Veteran has been rendered unable to obtain and maintain a substantially gainful occupation as the result of his service-connected PTSD. As such, entitlement to TDIU is warranted for the period prior to from February 5, 2008 to May 10, 2015. REASONS FOR REMAND The Veteran claims that his headache disability and lumbosacral spine disability are related to his military service. In the November 2016 remand, the Board directed the AOJ to obtain VA examinations and opinions for these disabilities. Specifically, the Board wanted to confirm a current headache disability. If one was found, the examiner was asked to opine whether a headache disorder was related to his active military service. The Board asked the examiner specifically to consider the Veteran’s statements since 1970. Although a current headache disorder was found, the medical examiner based his negative opinion on the Veteran’s service treatment records, including the separation physical, and not the Veteran’s lay statements. See August 2017 opinion. For these reasons, a remand is needed for an opinion that considers the Veteran’s lay statements regarding his headache disability. Similarly, the issue of entitlement to service connection for a lumbosacral spine disability was remanded by the Board so that the examiner could address the Veteran’s lay statement as to continuity of symptoms following in-service treatment for his back. The examiner did not consider the Veteran’s lay statements or discuss the 1985 treatment for his back when providing the opinion. See August 2017 opinion. For these reasons, a remand is needed for an opinion that considers the Veteran’s lay statements regarding his back disability and the 1985 treatment for his back. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s chronic headache disorder is at least as likely as not related to his military service. The Veteran’s statements regarding his headache disorder must be considered in the opinion. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s lumbosacral back disability is at least as likely as not related to his military service. The Veteran’s statements regarding his back must be considered in the opinion. Specifically, the examiner should address the lay evidence as to continuity of symptoms following the in-service treatment for his back, was well as the medical evidence confirming treatment for back problems as early as 1985. 3. Readjudicate the Veteran’s claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel