Citation Nr: 18151582 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 12-35 221 DATE: November 20, 2018 ORDER Entitlement to a 70 percent rating for an acquired psychiatric disorder, characterized as posttraumatic stress disorder (PTSD) and major depressive disorder with psychotic features, but no higher, is granted, prior to May 22, 2014, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted, prior to May 22, 2014, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Prior to May 22, 2014, the symptoms of the Veteran’s PTSD and major depressive disorder with psychotic features have more nearly approximated occupational and social impairment, with deficiencies in most areas. Symptoms of total occupational and social impairment have not been demonstrated. 2. Prior to May 22, 2014, the Veteran has been incapable of obtaining and maintaining substantially gainful employment due to his service-connected disability. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the criteria for an initial rating of 70 percent, and not higher, for PTSD, prior to May 22, 2014, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9434-9411. 2. Prior to May 22, 2014, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from June 1967 to June 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In a July 2017 decision, the Board denied the Veteran’s claim to entitlement to a rating in excess of 50 percent for the period prior to May 22, 2014, for an acquired psychiatric disorder, characterized as PTSD. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In April 2018, pursuant to a Joint Motion for Remand, the Court vacated the July 2017 decision and remanded the matter to the Board for action consistent with the Joint Motion. Although the issue of entitlement to a TDIU prior to May 22, 2014, was not adjudicated by the Board in its now-vacated July 2017 Board decision, where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board finds the issue of entitlement to a TDIU was raised by the record and by submissions of the Veteran’s attorney; therefore, the issue is added to the issue on appeal. Also, because the Veteran’s PTSD has been assigned a 100 percent schedular rating from May 22, 2014 (an issue that was not subject of the Board decision), and as described in more detail below, it is neither shown nor alleged that there are other service-connected disabilities other than the Veteran’s service-connected PTSD upon which a TDIU may be predicated, entitlement to a TDIU is moot from that date. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008); Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding request for TDIU post-July 1989 moot where 100 percent schedular rating was awarded in July 1989). 1. Entitlement to an initial rating in excess of 50 percent, for an acquired psychiatric disorder, characterized as posttraumatic stress disorder (PTSD) and major depressive disorder with psychotic features, prior to May 22, 2014 The Veteran seeks an initial rating in excess of 50 percent for his service-connected psychiatric disorder prior to May 22, 2014. In June 2009, the Veteran stated that he had dreams about fighting and trying to kill someone. He stated that his spouse was concerned about his dreams of killing someone and told him to get some help. He thought that his dreams scared her. He stated that he was very jumpy and nervous, and could not stand for someone to come up behind him or near him when he was unaware. He stated that he did not interact with people, and liked to be by himself mostly. His spouse and his daughter were the only ones he would tolerate because they knew and understand; and if anyone messed with them, he stated that he would kill without hesitation. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a higher original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119, 127 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Service connection for PTSD with major depressive disorder with psychotic features with an evaluation of 50 percent was granted effective from February 15, 2009, and an evaluation of 100 percent was assigned from May 22, 2014, in a July 2014 rating decision. The Veteran filed a notice of disagreement in August 2014. The Veteran is currently assigned a 50 percent rating for his service-connected PTSD with major depressive disorder with psychotic features, prior to May 22, 2014, and a 100 percent rating thereafter according to 38 C.F.R. § 4.130, Diagnostic Code 9434-9411 and the General Rating Formula for Mental Disorders. A 50 percent evaluation is warranted where there is 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where 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 a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). A Veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the presence of the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-118 (Fed. Cir. 2013). In addition to requiring the presence of the enumerated symptoms, 38 C.F.R. § 4.130 also requires that those symptoms have caused the specified level of occupational and social impairment. Vazquez-Claudio, supra. However, the factors listed in the rating schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating, so the determination should not be limited solely to whether a Veteran exhibited the symptoms listed in the rating scheme, but should also be based on all of a Veteran’s symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-443 (2002); Amberman v. Shinseki, 570 F.3d 1377, 1380 (Fed. Cir. 2009); see also 38 C.F.R. § 4.126(a); compare Massey v. Brown, 7 Vet. App. 204, 208 (1994). It is error where the Board fails to assess adequately evidence of a sign or symptom experienced by the Veteran, misrepresents the meaning of a symptom, or fails to consider the impact of the Veteran’s symptoms as a whole. However, the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria, including suicidal ideation, is not necessarily dispositive of any particular disability level. Bankhead v. Shulkin, 29 Vet. App. 10, 25 (2017). For instance, the scores assigned under the Global Assessment of Functioning (GAF) scale may be a relevant consideration. See e.g., Bowling v. Principi, 15 Vet. App. 1, 14 (2001). However, the American Psychiatric Association has since determined that the GAF score has limited usefulness in the assessment of the level of disability. Noted problems include lack of conceptual clarity and doubtful value of GAF psychometrics in clinical practice. 79 Fed. Reg. 45093 (Aug. 4, 2014). The Board notes that effective August 4, 2014, the regulations governing the rating of mental disorders were updated to replace all references to the DSM-IV with references to the DSM-V, which no longer utilizes the GAF score system. 80 Fed. Reg. 14308 (Mar. 19, 2015). However, this change does not apply to claims that were certified for appeal to the Board prior to August 4, 2014 even if such claims were subsequently remanded. Id. As the Veteran’s claim was certified to the Board in March 2016, the DSM-IV is no longer applicable to his claim. The evidence reflects that the Veteran has been diagnosed with other nonservice-connected psychiatric disorders. The use of manifestations not resulting from service-connected disease or injury is to be avoided when establishing the service-connected disability evaluation. 38 C.F.R. § 4.14. However, where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran’s service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). VA treatment records reflect a diagnosis of anxiety disorder not otherwise specified (NOS) from February 2009; depressive disorder NOS rule out (r/o) explosive disorder from March 2009; dysthymic disorder r/o PTSD from February 2010. VA treatment records reflect treatment for PTSD from February 2010. The Board has attributed the impairments/symptomatology from all of these diagnosed psychiatric disorders to the Veteran’s service-connected PTSD and major depressive disorder with psychotic features. See Mittleider, supra. After a review of the evidence, for reasons set forth below and resolving all reasonable doubt in favor of the Veteran, the Board finds that the symptoms of the Veteran’s service-connected psychiatric disorder have more nearly approximated the criteria for a 70 percent rating, but not higher, prior to May 22, 2014. A March 2009 VA treatment record reflects that the Veteran reported that his spouse made him seek treatment. He reported that he had a bad temper, and that if anything happened around the house, he would become unglued. He reported that he felt like the world was against him, and he endorsed feelings of hopelessness, helplessness and worthlessness. In June 2009, the Veteran’s spouse stated that the Veteran would get in a bad mood that could last for days, he would say hurtful things or fly off the handle. She stated that he was unstable and unpredictable. She stated that she could not depend on him, and if something happened, she would have to take care of it or break the news to him and let him blow up and then move on. She stated that his mood swings were hard to handle. She stated that he did not interact with the family, and just stayed in his room. She stated that he would wake up violently, but was not fully awake; he would sometimes talk to someone or look for something, but if she asked him, he would not answer. A February 2010 VA treatment record reflects that the Veteran continued to have a lot of nightmares and was afraid to be around people, which was causing a lot of stress in his marriage. His spouse threatened to leave him if he did not seek help. A December 2012 VA treatment record reflects that the Veteran reported that he was bothered by the current war, as well as a recent shooting in Newton, Connecticut. He reported that he had trouble sleeping, lack of motivation, and no pleasure in social gatherings or celebrating holidays. In June 2018 a private treatment examiner opined that the severe and chronic expression of the Veteran’s service-connected psychiatric symptoms have at least as likely as not caused him total occupational and social impairment since at least February 2009, to the present. The examiner noted that the Veteran had suffered from the following symptoms: recurrent thoughts, traumatic nightmares, flashbacks, intense distress and marked physiologic reactivity after exposure to trauma triggers, avoidance tendencies, negative beliefs or expectations, distorted cognitions, negative emotional state, diminished interests, alienation, constricted affect, irritability, self-destructive behavior, hypervigilance, exaggerated startle response, problems with concentration, sleep disturbance, depressed mood, increased appetite and weight, psychomotor retardation, fatigue and loss of energy, feelings of worthlessness and guilt, recurrent thoughts of death and suicidal ideation without intent or plan, and mood related delusions and hallucinations. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the symptoms of PTSD and major depressive disorder with psychotic features have more nearly approximated the criteria for a 70 percent rating, but not higher, prior to May 22, 2014. Prior to May 22, 2014, the symptoms of the Veteran’s PTSD and major depressive disorder with psychotic features were manifested primarily by ongoing symptoms of irritability, homicidal ideation, impaired impulse control, depressed mood, hypervigilance, social isolation, and nightmares. The Board finds that the Veteran’s symptomatology prior to May 22, 2014 has been consistent with and more nearly approximated occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, the criteria for a 70 percent rating. Although the medical evidence does not show symptomatology such as 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, the symptoms noted in the rating schedule are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan, supra. Thus, even though not all the listed symptoms compatible with a 70 percent rating are shown, the Board concludes that the type and degrees of symptomatology contemplated for a 70 percent rating appear to be demonstrated prior to May 22, 2014. However, the Board finds that the symptoms associated with the Veteran’s PTSD and major depressive disorder with psychotic features do not meet the criteria for a 100 percent rating prior to May 22, 2014. A 100 percent rating requires total occupational and social impairment due to certain symptoms. The Board finds that neither the delineated symptoms nor comparable symptoms are shown to be characteristic of the Veteran’s PTSD and major depressive disorder with psychotic features prior to May 22, 2014. The evidence of record does not indicate that the Veteran has exhibited persistent delusions prior to May 22, 2014. The Board acknowledges that the June 2018 private examiner noted that the Veteran had mood related delusions and hallucinations; however, other than daily nightmares, the evidence of record does not reflect that the Veteran had persistent delusions or hallucinations prior to May 22, 2014. Further, prior to May 22, 2014, the evidence of record does not indicate that the Veteran exhibited grossly inappropriate behavior; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Throughout the record, prior to May 22, 2014, the Veteran was consistently found to be oriented. He was able to maintain a relationship with his spouse and children, though, the Board acknowledges, that the Veteran and his spouse reported that he was socially isolated and his spouse threatened to leave him if he did not seek treatment. Prior to May 22, 2014, the evidence of record does not indicate that the Veteran was a persistent danger of hurting self or others, though, the Board acknowledges that the Veteran had passive homicidal ideation and nightmares. Nor did the Veteran have the intermittent inability to perform activities of daily living. Therefore, the Board finds that total social and occupational impairment has not been shown. In sum, the Board finds that the psychiatric symptoms shown do not support the assignment of the maximum 100 percent schedular rating. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) The Veteran seeks a total disability rating based upon individual unemployability. A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of a TDIU, disabilities of common etiology will be considered a single disability. Id. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. After a review of the evidence, for reasons set forth below and resolving all reasonable doubt in favor of the Veteran, the Board finds that prior to May 22, 2014, the Veteran met the rating percentage criteria for TDIU under 38 C.F.R. § 4.16(a), and the evidence shows that the Veteran’s service-connected disabilities precluded him from engaging in substantially gainful employment throughout the period on appeal. The Veteran’s service-connected disabilities include PTSD with major depressive disorder with psychotic features with a rating of 70 percent from February 15, 2009, and a 100 percent rating from May 22, 2014; tinnitus with a rating of 10 percent from March 21, 1980; hypertension with a rating of 10 percent from December 28, 2007; and bilateral hearing loss with a 10 percent rating from September 2, 2008. Based upon the rating of 70 percent for the Veteran’s service-connected PTSD with major depressive disorder with psychotic features, the Veteran has met the schedular criteria of 38 C.F.R. § 4.16(a) prior to May 22, 2014. The Veteran’s notice of disagreement of the initial disability rating for his service-connected PTSD and major depressive disorder with psychotic features was received in August 2014; a formal claim for TDIU was initially received in September 2018. The Veteran reported that his PTSD and major depressive disorder with psychotic features; tinnitus; hypertension; and bilateral hearing loss prevented him from securing or following a substantially gainful occupation. He indicated that he became too disabled to work full-time in May 1998. He stated that he had not worked in any capacity since 1999, following a work injury. He stated that although he left work for unrelated reasons, his service-connected disabilities had since worsened to such an extent that he was unable to return to work. He stated that following his termination, his PTSD symptoms had worsened, and he isolated himself more, was angrier, experienced nightmares almost every night, consistently dealt with feelings of anxiety and nervousness on a daily basis; and had trouble concentrating on tasks in front of him. While some medical evidence of record suggests that the Veteran’s service-connected disabilities may combine to render him unable to work, there is persuasive and probative evidence that the primary cause of his unemployability is the impairment from his service-connected psychiatric disorder. The Veteran was afforded an VA examination in May 2009, which reflected a diagnosis of severe bilateral mixed hearing loss and tinnitus. The examiner opined that the Veteran’s bilateral hearing loss impacted his ability to understand conversations, especially higher pitched voices and in background noises; and the Veteran was aware of his tinnitus if he thought about it. The Veteran was afforded an VA examination in June 2014, which reflected a diagnosis of PTSD and major depressive disorder with psychotic features. The Veteran reported that he graduated from high school in 1964 and attended a year and a half of college when he was drafted. During service he worked as a welder; and after service he built cotton gins, and later went into his own business as a welding contractor. A March 2018 Social Security statement reflects that the Veteran last worked in 1999. In June 2018 a private treatment examiner opined that the Veteran’s PTSD and major depressive disorder have at least as likely as not caused him total occupational and social impairment since at least February 2009 to the present; and that the Veteran’s service-connected PTSD had at least as likely as not rendered him fully unable to successfully secure and follow substantially gainful employment since at least 1999, when he last worked, to the present. The examiner noted that the Veteran described a consistent presentation of psychiatric symptoms remaining present throughout his civilian work history and peaking in 1999 when he was last employed. His current level of distress had been present since at least February 2009 and had remained severe and persistent to the present date. The examiner opined that the combination of the Veteran’s PTSD and major depressive disorder symptoms would make it very difficult to pursue employment, stay on task at work, get along with others at work, and be reliable and effective in a competitive work environment. The examiner opined that the Veteran’s symptoms negatively impacted his communication abilities, concentration, memory and ability to follow instructions as well as his reactivity and judgment, and tolerance in interacting with people such as supervisors, co-workers, and the public. The examiner noted that the Veteran highlighted his difficulty getting along with others at work and he described a consistent inability to use proper judgment and interact respectfully with people in a professional workplace. The Board finds that, in light of the Veteran’s education and work experience, the evidence of record is at least in equipoise as to whether the Veteran’s service-connected disabilities render him unemployable. The schedular criteria for a TDIU have been met prior to May 22, 2014. The Veteran reported that he last worked full-time in 1999, and a March 2018 Social Security statement reflects that the Veteran last worked in 1999. The June 2018 private examination indicates that the Veteran had a serious employment handicap due to his PTSD and major depressive disorder. Accordingly, entitlement to a TDIU is warranted and the claim is granted prior to May 22, 2014. Finally, as noted above, the Board is cognizant of the decision of the Court in Bradley v. Peake, supra, in which the Court held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation. The Bradley case, however, is distinguishable from the instant case. In Bradley, the Court found that TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no “duplicate counting of disabilities.” Id. Here, the Veteran’s service-connected PTSD and major depressive disorder with psychotic features is rated at a 100 percent schedular disability rating, and the Veteran’s other service-connected disabilities include tinnitus with a rating of 10 percent from March 21, 1980; hypertension with a rating of 10 percent from December 28, 2007; and bilateral hearing loss with a 10 percent rating from September 2, 2008, which do not meet the statutory requirements to form the basis for an award of special monthly compensation; the Veteran has not alleged otherwise in this regard. Thus, to also award a separate TDIU rating in addition to the schedular 100 percent rating from May 22, 2014, based on the Veteran’s service-connected PTSD with major depressive disorder with psychotic features would result in duplicate counting of the disability. Therefore, the Board has given no further consideration of this matter. Resolving all reasonable doubt in favor the Veteran, the Board finds that the Veteran met the rating percentage criteria for a TDIU under 38 C.F.R. § 4.16(a) prior to May 22, 2014, and the evidence shows that the Veteran’s service-connected disability precluded him from engaging in substantially gainful employment throughout that relevant period on appeal. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel