Citation Nr: 18155755 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-41 245A DATE: December 6, 2018 ORDER An initial evaluation of 70 percent for posttraumatic stress disorder is granted. An effective date of July 20, 2006, for the award of a total disability rating based upon individual unemployability is granted. [NOTE: The issue of an effective date earlier than September 10, 2015, for the grant of a 60 percent evaluation for coronary artery disease and congestive heart failure is the subject of a separate Board decision.] FINDINGS OF FACT 1. PTSD was productive of occupational and social impairment with deficiencies in most areas. 2. Beginning July 20, 2006, the Veteran was unable to secure and maintain substantially gainful employment due to service connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent evaluation for posttraumatic stress disorder have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for entitlement to a total disability rating based upon individual unemployability (TDIU) beginning July 20, 2006, have been satisfied. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to April 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2012 and March 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a total disability rating based on individual unemployability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, a TDIU was granted effective from September 10, 2015. However, the issue of effective date was raised by the Veteran in the notice of disagreement to the rating decision awarding TDIU. As the appeal period for the claim of a TDIU is the same as that for the underlying increased rating claim, which in this case is beginning July 20, 2006, the claim for a TDIU beginning July 20, 2006 until the date of award is before the Board as a component of his claim for an increased evaluation for PTSD. Id. 1. An initial evaluation in excess of 30 percent for posttraumatic stress disorder. The Veteran has been assigned a 30 percent rating for his posttraumatic stress disorder (PTSD) pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. All psychiatric disorders are evaluated under the General Rating Formula for Mental Disorders, which provides for a noncompensable evaluation when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is warranted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130. A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation, neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Use of the term “such symptoms as” in § 4.130 indicates that the list of symptoms that follows is non-exhaustive, meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the “psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness.” Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). However, the American Psychiatric Association has 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. 45,093, 45,097 (Aug. 4, 2014). Due to the change in medical practice, the Board finds that the use of GAF scores is not useful in this case. On this record, in July 2006, Dr. R.C.G. reported that when there are heavy rains in Puerto Rico, the Veteran enters into a panic and isolates himself in the house. An August 2006 VA treatment record reported no hallucinations or aggressiveness, no suicidal ideation or homicidal ideation. Memory was intact. Flashbacks were present. The Veteran denied visual and auditory hallucinations and past parasuicidal behavior. He denied ideas of self-harm and harm to others. The mental status examination showed the Veteran was unshaven with fair grooming. His mood was “well.” Insight and judgment were fair. In a September 2006 VA evaluation for PTSD, the Veteran reported moderate trouble sleeping with nightmares four times per week. He further reported moderate lack of concentration on a daily basis. He reported severe, daily, depression which started when the Veteran had to quit his job in December 2005 due to physical disorders. He also reported moderate lack of appetite on a daily basis. He reported being married twice and divorced, and being the father of two children and one step child. He reportedly was unable to adapt to living as a couple. He was living alone. His family relationships were reportedly normal. He reported “not too many” social relationships. He denied suicide attempts. The psychological examination revealed a clean appearance, spontaneous speech, a cooperative attitude, a constricted affect with dysphoric mood, and intact attention. He was of average intelligence. Sleep impairment would leave him tired the next day. Panic attacks were denied. The Veteran denied homicidal and suicidal thoughts and exhibited good impulse control with no episodes of violence. His memory was found to be normal. The examiner found that the disturbance does not cause clinically significant distress or impairment in social, occupational or other important areas of functioning. The Veteran attributed his unemployment to his cardiac disorder, not to his PTSD. The examiner opined that PTSD signs and symptoms result in deficiencies in family relations and mood, but not judgment, thinking, or work. In a September 2006 questionnaire, the Veteran completed as part of his application for Social Security Administration benefits, he indicated activities of daily living were okay. His sister would prepare his meals. He needed someone to remind him to take his medications. He would go outside once or twice a week to walk. He noted he did not drive due to his low back. He was able to pay bills. Concentration problems prevented him from reading and watching TV. He stopped sports. He would talk to his sister or family members daily. In a November 2006 private psychiatric evaluation, the Veteran reported nighttime shadows, insomnia, body pains, flashback and nightmares about Vietnam events and depressive feelings. He reported crying spells, occasional screaming, restlessness, and poor motivation toward speaking. The Veteran was living with his sister. He did not participate in church, social, cultural or sport activities in his community. He would relate cordially to his family and to his neighbors. The mental status report showed casual dress, an unshaven face, and well-kept hair. The Veteran walked with a slow gait. His facial expression was sad and his mood was depressive. His voice was low pitched, pleasant and moderately spontaneous. His thoughts were coherent and relevant. Immediate memory was good. Short term memory was poor. Recent memory was good and remote memory was fair. Attention was good. Concentration was poor. Judgment and insight were good. A January 2007 psychiatric assessment for Social Security Administration (SSA) benefits noted the presence of a mental residual functional capacity for both simple and complex related tasks. An August 2007 private psychiatric evaluation showed similar reports, except suicidal and homicidal ideas were present as were auditory hallucinations. These hallucinations were described as voices that tell the Veteran to go out and kill people, especially the enemy. A GAF score of 40 to 50 was assigned. The report stated the Veteran required hospitalization for proper treatment, and that on occasion, he would need hospitalization. A May 2008 SSA questionnaire reported the Veteran gets up late in the morning, or when the medications wear off, very weak and dizzy due to the medication. His brothers help him to get up and help him with his personal grooming and give him his medications. His sister does the cleaning, prepares the meals and helps him with grooming. He spends time under the influence of the medications, which make him sleep all day. When home, he shuts himself inside and does not pay attention to what’s going on. He becomes very irritated and sad and fed up with feeling useless. He gets hostile and sometimes aggressive when the medications don’t kick in fast. A June 2008 medical history report for an SSA application shows the Veteran was still suffering from severe depression and pains that prevent him from doing any kind of activity. He reported being nervous and anxious, having insomnia, mental blocks, panic attacks, and severe pain. A December 2008 private physician stated that the Veteran had continuous flashbacks, nightmares, suicidal and homicidal thoughts, and auditory hallucinations. The physician asserted that the Veteran does not like to go out, does not like to have contact with the exterior world, and does not have many friends. The physician further stated he will panic if he sees or hears a helicopter and other reminders of the war. The physician further stated that the Veteran cannot handle stress, maintain his concentration and attention span, and perform within a schedule or meet production standards. A June 2010 VA PTSD evaluation revealed the Veteran was clean and appropriately dressed. Speech was spontaneous and clear. Mood was anxious. Attention was intact. Thought process and content were unremarkable. Sleep impairment, obsessive/ritualistic behavior, panic attacks, homicidal thoughts, and suicidal thoughts were absent. Impulse control was good. Remote, recent, and immediate memory were normal. The examiner found no PTSD symptoms present. It was noted that the Veteran was a warehouse clerk until 2009, with the cause of his retirement both physical and psychiatric. The Veteran was living alone. The diagnosis was Depression NOS. The examiner found mental disorder symptoms were controlled by continuous medication. July 2010 lay statements reiterate the Veteran’s complaints of a stressful life, lack of sleep, lack of concentration, divorces, and physical difficulties. A May 2011 mental status evaluation by private clinician Dr. F.V. showed good hygiene and a cooperative, logical thought process. He was concerned about his future, but was not suicidal or homicidal. His mood was anxious. He had no abnormalities of perception. Judgment and insight were poor. A GAF score of 50 was assigned. A June 2011 evaluation by private clinician Dr. F.V. reported that the Veteran experiences episodes of profuse sweating, kicking, “afraid feelings,” and anxiousness an average of two times per week. February 2012 through January 2016 VA treatment records frequently note that suicidal and homicidal ideation was not present. In a July 2013 evaluation by Dr. R. C. G., the Veteran reported nightmares related to deaths in the Vietnam War. He reported he could not watch the news due to the crime in Puerto Rico. He reported being startled easily and seeing images of “guts and body parts dressed in black pajamas.” His thoughts would go to combat and his sister would have to smack him so that he could snap out of the trance. He would panic with birthday parties and social activities. He would take pills to calm his nerves. A February 2016 Veteran-submitted private disability benefits questionnaire reported the presence of serious impairment in social and occupational areas. The evaluator opined that there was total occupational and social impairment. The evaluator reported symptoms of insomnia, flashbacks, poor concentration, social withdrawals, nightmares, isolation, loss of interest in activities, fear, ill-humor, intrusive recollections and crying episodes. Symptoms for VA rating purposes also included difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and irritability. Suicidal ideation was not present. On this record, the Board finds that an initial 70 percent evaluation is warranted. The Veteran’s private treatment records throughout the appeal period indicate serious symptoms, such as panic attacks on a regular basis, frequent sleep disturbance, and severe daily depression. He lost significant interest in daily activities and appears to be essentially a shut-in. There are some reports, though not uniform, of auditory and visual hallucinations. He reported entering a trance-like state in response to PTSD triggers. Although the VA examination reports do not reveal the same seriousness of symptomatology, the Board gives greater probative weight to the private treatment records because the examiner followed the Veteran over time. A 100 percent evaluation requires both total social and total occupational impairment. By granting a TDIU, the Board acknowledges that the Veteran has total occupational impairment. However, a 100 percent evaluation is not warranted because the Veteran maintains significant relationships with his family, even though he does not otherwise socialize much. For example, in a SSA record, it was noted that he speaks with his sister or family members who visited him daily. He had two adult children and one adult step child from his two previous marriages. At his June 2010 VA examination, he described his family relationships as “normal,” but that otherwise his socialization was limited. The examiner noted that since his most recent divorce, he had “several consensual relationship[s].” The record consistently shows that he lives with his sister. The February 2016 private examiner found total social and total occupational impairment but there is not sufficient information in the examination to discern why this finding was made. The Board assigns more probative weight to the evidence showing that the Veteran maintains some social relationships. “Total” is defined as “whole, not divided; full; complete,” and “utter, absolute.” Black’s Law Dictionary, 1498 (7th ed. 1999). The most probative evidence of record shows that the Veteran maintains some social relationships. Thus, his PTSD does not cause total social impairment. 2. An effective date earlier than September 10, 2015, for the award of a TDIU. The claim for a TDIU beginning July 20, 2016, is before the Board as a component of his claim for a higher evaluation for PTSD. Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Individual unemployability must be determined without regard to any non-service connected disabilities or the veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). With the award in this decision of a 70 percent evaluation for PTSD, the Veteran meets the schedular requirements for a TDIU beginning July 20, 2006. Thus, the question is whether he was unable to secure and maintain substantially gainful employment prior to September 10, 2015. In that regard, the evidence shows some conflict as to when the Veteran last worked and for what reasons he left employment. As noted above, in 2006, the Veteran reported he had to quit his job in December 2005 due to physical disorders. A June 2006 private treatment record shows the Veteran was unemployed. The December 2008 Application for Increased Compensation Based on Unemployability shows the Veteran became too disabled to work in January 2004. In a March 2009 Social Security Administration decision, the agency found that the Veteran was disabled beginning in December 2005. The agency further found that due to a severe mental impairment, he has to avoid normal work stress and is precluded from performing a sustained work routine. The 2016 private disability benefits questionnaire found serious impairments in the Veteran’s ability to work. On the other hand, the June 2010 VA PTSD evaluation noted that the Veteran was a warehouse clerk until 2009, with the cause of his retirement both physical and psychiatric. The Board gives greater weight to the SSA disability findings in these regards as they appear to have been the product of considerable evaluation and expertise. Thus, the Board finds that the Veteran has been precluded from securing and maintaining substantially gainful employment throughout the appeal period of the claim for increased rating for PTSD. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Rocktashel, Associate Counsel