Citation Nr: 18152846 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-53 704 DATE: November 27, 2018 ORDER Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Throughout the applicable period, PTSD manifested by occupational and social impairment with reduced reliability and productivity, but not occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. 2. Throughout the applicable period no service-connected disability has been rated at 60 percent or more disabling and the combined rating has been less than 70 percent. CONCLUSIONS OF LAW 1. The criteria for evaluation in excess of 50 percent for PTSD have not been met or approximated. 38 U.S.C. §§ 1155,5103, 5103A, 5107 (2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2017)]. 2. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. The VA schedule of ratings will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 38 C.F.R. Section 3.321(b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria. According to the regulation, an extraschedular disability rating is warranted upon a finding that “the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.” Id. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates “staged ratings” where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). However, “staged ratings” are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. The Veteran’s PTSD is in receipt of a 50 percent initial rating, under 38 C.F.R. § 4.130, Diagnostic Code 9411, which pertains to PTSD. Almost all mental health disorders, including adjustment disorders, are evaluated under the General Rating Formula for Mental Disorders (Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula, as pertinent to the present appeal, a 50 percent rating is warranted where the disorder is manifested by 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 and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating requires 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. The maximum 100 percent rating 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. In evaluating psychiatric disorders, VA also considers a claimant’s Global Assessment Functioning (GAF) scores, which are based on a scale set forth in the American Psychiatric Association ‘s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), 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); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996); DSM-IV. See also, 79 Fed. Reg. 45094 (Aug. 4, 2014) (amending the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the DSM-IV, with references to the Fifth Edition (DSM-5), applicable to applications for benefits received by VA or pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014). The Board recognizes that VA has amended the Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations; however, while the DSM-5 no longer requires the use of GAF scores to assess quantitative assessment of overall functioning, the Board nonetheless finds that those GAF scores presented in the record assist in illuminating the Veteran’s level of disability. According to DSM-IV, a score of 61-70 indicates “[s]ome mild symptoms (e.g., depressed mood and 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, has some meaningful interpersonal relationships.” A score of 51-60 indicates “[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers).” Id. A score of 41-50 indicates “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” Id. A score of 31-40 indicates “[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work).” Id. A GAF score thus may demonstrate a specific level of impairment. See Richard, 8 Vet. App. at 267 (observing that a GAF score of 50 indicates serious impairment); accord Bowling v. Principi, 15 Vet. App. 1, 14-15 (2001). Further, while an examiner’s classification of the level of psychiatric impairment as reflected in a GAF score can be probative evidence, such a score is by no means determinative of the rating assigned by VA in evaluating a psychiatric disorder under the rating criteria. See 38 C.F.R. §§ 4.2, 4.126 (2015); VAOPGCPREC 10-95 (March 31, 1995). Rather, VA must take into account all of the Veteran’s symptoms and resulting functional impairment as shown by the evidence of record in assigning the appropriate rating, and will not rely solely on the examiner’s assessment of the level of disability at the time of examination. See 38 C.F.R. § 4.126. The Veteran filed his claim for service connection of PTSD in December 2013. He noted that he had recently learned that the nervous condition he had for years had been identified as PTSD. In furtherance of substantiating his claim, VA obtained a March 2014 private psychological consultation report from Psychological Consulting Services. The opinion assesses PTSD, chronic, severe, and assigns a GAF of 40. At the time, the Veteran reported a history of intrusive thoughts, traumatic nightmares, avoidance of conversations about military service, hypervigilance, problems with memory and concentration and exaggerated start le response. He related that he was more irritable upon his return from Vietnam, and that he got into fights at his old job. Currently, the Veteran reported hypervigilance, avoidance of crowds and that he preferred to spend time at home alone. He reported problems with going to and remaining asleep. He often awoke and checked his home’s locks, windows and grounds. He reported memory and focus problems. Mental status examination in March 2014 reflected that the Veteran was cooperative, dressed normally, and had an agitated mood. His speech and thought process were unremarkable. He had no suicidal or homicidal ideation. In closing, the opinion notes that the Veteran’s symptoms had caused “significant disturbances” in all areas of his life. The clinician also remarked that his hyperirritability and hypervigilance severely compromised his ability to initiate or sustain work relationships. She felt that the Veteran’s prospect for recovery was poor, and considered him to be “totally and permanently disabled.” In June 2014, the Veteran was afforded a VA initial PTSD examination. Examination resulted in assessments of PTSD and persistent depressive disorder with anxious distress with intermittent major depressive episodes, with current episode. The examiner differentiated between the symptoms attributable to each. In terms of PTSD, the June 2014 VA examiner, identified intrusive thoughts, distressing dreams/nightmares, flashbacks, psychological and physiological distress to cues, avoidance of thoughts, feelings and conversations related to trauma, avoidance of activities, places and people, avoidance of reminders of trauma, emotional numbness, detachment/estrangement from others, persistent and exaggerated negative beliefs or expectations about one’s self, others or the world, persistent, distorted cognitions about the cause or consequences of the traumatic events that lead the individual to blame himself/herself or others, persistent negative emotional state, irritability/anger, hypervigilance, and exaggerated startle response. In terms of depression, the examiner identified depressed mood most of the day, nearly every day, anhedonia, feelings of worthlessness, fatigue, behavioral retardation, suicidal ideation. The examiner noted that the symptoms of the two assessed psychiatric disabilities overlapped with respect to sleep disturbance, difficulty concentrating, markedly diminished interest in pleasurable activities. Although the examiner was able to delineate the symptoms attributable to PTSD and depression, the examiner was not able to differentiate what portion of occupational and social impairment was attributable to each diagnosis. In terms of employment, the June 2014 examination report reflects that the Veteran had worked for 30 years for the same employer and retired in 2007 due to a back injury. He had been, and remained, married for 42 years, and described his marriage as “so-so.” He described himself as a loner, and stated that this strained his relationship with his wife. He and his wife vacationed and visited family together. He had 4 children, and remained in contact with all of them. He had no friends, but got together with his brother-in-law on occasion. During the day he watched TV, did chores and yard work. He had no hobbies. On examination, the June 2014 examiner summarized the Veteran’s symptoms as depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. In terms of behavioral observations, the examiner noted that the Veteran was on time and cooperative. His grooming and hygiene were fair, and his clothing was somewhat disheveled. He was not well-shaved. His mood appeared dysphoric. His affect was depressed. Psychomotor activity was normal. Speech was clear and fluent. Thought processes were logical and goal-directed. Thought content appeared appropriate. Intellectual functioning appeared to be within the average impaired range. In terms of overall occupational and social impairment, the examiner found that the disabilities and their symptoms resulted in occupational and social impairment with reduced reliability and productivity. The June 2014 examiner addressed the opinion from Psychological Consulting Services, which indicated that the Veteran was “totally and permanently disabled.” The examiner explained that it was important to note that she and other doctors had reviewed numerous evaluations from this provider, and that to date “in over 20 evaluation reports reviewed by [them], every Veteran has been deemed to be ‘totally and permanently disabled,’ despite being successful full-time students, working full-time or retired from successful long-term careers as is the case for this Veteran.” The examiner advised that this assessment be cautiously considered, if at all, in evaluating the Veteran. Of record is an April 2016 letter from Psychological Consulting Services. The letter reflects an assessment of PTSD based on combat stressors. The letter also notes that the Veteran was “permanently disabled.” Rationale is absent. In August 2016, the Veteran was afforded a VA examination. Examination at that time resulted in assessments of PTSD and persistent depressive disorder with anxious distress with intermittent major depressive episodes. The examiner noted that the Veteran had comorbidity and that both diagnoses overlapped with each other. However, she remarked that each diagnosis had its own unique symptoms. She attributed current symptoms of avoidance of crowds, obsessively checking doors and looking out windows for security (hypervigilance), re-experiencing trauma, avoidance reactions, negative cognitions related to past trauma, strong negative feelings, feeling distant from others, problems experiencing positive feelings, and easily being startled to PTSD. With respect to the depressive disorder, she found that fatigue, depressed mood, poor appetite, feelings of worthlessness and hopelessness, weight gain, irritability, intense crying, loneliness, and disorganized thoughts were related to this assessment. The examiner found that the symptoms also overlapped with respect to sleep disturbance, difficulty concentrating, anhedonia, and guilt. However, the examiner stated that because of significant symptom overlap, it was impossible to determine what portion of the Veteran’s occupational and social impairment was attributable to each diagnosis. In terms of occupational history, the Veteran remained retired, as outlined above. With respect to social functioning, the Veteran remained married, and described his support system as being casual with his wife and children. He felt that his support system was adequate. On examination, the examiner identified depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impairment of short- and long-term memory, for example retention of only highly learned material, while forgetting to complete tasks, disturbances of motivation or mood, and obsessional rituals that interfere with routine activities. On mental status examination, the Veteran was noted as casually dressed and slightly disheveled. He appeared tense, but stated that he was “in a pretty good mood, [he] guess[ed].” Towards the end of the examination, the Veteran appeared less anxious and more euthymic. His thought processes were goal-directed. He denied psychotic symptoms and none were observed. Speech was within normal limits. Concentration was good and the Veteran was attentive. He was alert and oriented in all spheres. He reported some mild memory problems, but none were observed during the examination. He was capable of managing his financial affairs. Overall, the examiner found that the Veteran’s psychiatric disabilities and symptoms resulted in occupational and social impairment with reduced reliability and productivity. Initially, the Board must address the probative value of the reports from Psychological Consulting Services. It is the duty of the Board as the fact finder to determine the credibility of the testimony and other lay evidence. Culver v. Derwinski, 3 Vet. App. 292, 297 (1992). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Here, the Board affords these reports little, if any, probative value. They are probative to the extent that they assess PTSD and identify symptoms thereof. However, the Board affords them no probative value in terms of the overall occupational and social impairment that they portray. In each case, these reports describe the Veteran as totally and permanently disabled, with no rationale provided for that conclusion. Moreover, the August 2016 VA examiner has noted that the opinions from this provider should be viewed cautiously, if at all, because numerous reports from this provider have identified other Veteran’s as permanently and totally disabled, notwithstanding obvious evidence to the contrary. Accordingly, the Board affords the opinion from Psychological Consulting Services concerning the severity of the Veteran’s PTSD no probative value. The Board finds that the weight of the evidence demonstrates that an evaluation in excess of 50 percent for PTSD is no warranted. The Veteran’s symptoms do not approximate the criteria for a 70 percent evaluation. In this regard, the Board notes that the August 2016 VA examiner noted obsessional rituals that interfere with routine activities, i.e. checking the “perimeter.” However, there are no symptoms that are otherwise similar to, or consistent with, the symptoms necessary to substantiate a 70 percent evaluation. Here, the Veteran retired after 30 years of employment, due to a back disability, not any psychiatric disability. He has maintained family relationships. VA examiners have consistently stated that the Veteran’s psychiatric disability results in occupational and social impairment with reduced reliability and productivity. Thus, the Board cannot conclude that PTSD demonstrated occupational and social impairment with deficiencies in most areas, such as work, family relations, judgement, thinking or mood, due to any obsessional rituals. The weight of the evidence shows that the Veteran is proficient in most areas, including family relations, judgment and thinking. Total occupational and social impairment is certainly not shown. Accordingly, entitlement to an evaluation in excess of 50 percent for PTSD is denied. Fenderson, supra. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 the 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. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the service-connected disabilities render him incapable of substantially gainful employment. 38 C.F.R. § 4.16(a). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is currently in receipt of compensation for PTSD, with a 50 percent evaluation, but he has no other service-connected disability. He does not have a single service-connected disability rated at 60 percent or more and his combined rating has never been 70 percent or greater. As noted above, the Veteran retired in 2007 due to a back injury after 30 years of successful employment. Nevertheless, the Veteran does not meet the minimum schedular criteria for consideration of a TDIU. Accordingly, a TDIU is not warranted. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). K. J. Alibrando Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph R. Keselyak