Citation Nr: 18156524 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 13-09 028A DATE: December 10, 2018 ORDER Entitlement to a rating of 70 percent, but no higher, for the period prior to September 25, 2018, for posttraumatic stress disorder (PTSD), is granted. Entitlement to a rating in excess of 70 percent for the period from September 25, 2018, for PTSD, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. For the period prior to September 25, 2018, the Veteran’s PTSD was manifested by symptoms productive of occupational and social impairment with deficiencies in most areas; symptoms productive of total occupational and social impairment have not been shown. 2. For the period from September 25, 2018, the Veteran’s PTSD is manifested by symptoms productive of occupational and social impairment with deficiencies in most areas; symptoms productive of total occupational and social impairment have not been shown. CONCLUSIONS OF LAW 1. For the period prior to September 25, 2018, the criteria for a rating of 70 percent, but no higher, for the Veteran’s service-connected PTSD were met. 38 U.S.C. §§ 1155, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411 (2018). 2. For the period from September 25, 2018, the criteria for a rating in excess of 70 percent for the Veteran’s service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9411 (2018) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the Army from October 1969 to August 1977. This appeal comes to the Board of Veterans’ Appeals (Board) from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction for the case is currently with the RO in Cleveland, Ohio. In March 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. The transcript has been associated with the claims file. In January 2014, the Veteran also had a decision review officer hearing at the RO in Winston-Salem, North Carolina. That transcript has been associated with the claims file as well. In September 2016 and June 2018, the issue of entitlement to an increased rating for PTSD was remanded by the Board for further development. The Board notes that while the Veteran was previously represented by a private attorney, the attorney withdrew representation in a letter dated February 9, 2018. The attorney provided a copy of the letter to the Veteran, and the Veteran has not objected to the attorney’s withdrawal of representation. Since the private attorney withdrew, the Veteran has not appointed a new attorney, agent, or representative, and he is, thus, unrepresented. During a September 2018 VA examination, the VA examiner opined that due to the severity of the symptoms of the PTSD manifested, it was unlikely that the Veteran’s service-connected disabilities would allow him to function satisfactorily in an occupational environment. Accordingly, the Board finds that a claim for a TDIU has been raised by the record. In light of the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), entitlement to a TDIU is properly considered as part of the claim for increased rating, and the Board has rephrased the issues to include a claim for a TDIU. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2018). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2018). Otherwise, the lower rating will be assigned. Id. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Francisco v. Brown, 7 Vet. App. 55 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to a rating in excess of 30 percent for PTSD prior to September 25, 2018, and in excess of 70 percent from September 25, 2018. The Veteran’s service-connected PTSD is rated at 30 percent prior to September 25, 2018, and at 70 percent from September 25, 2018 under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under these criteria, a 30 percent rating is warranted where the psychiatric condition produces 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 memory loss (such as forgetting names, directions, recent events). See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2018). A 50 percent rating is warranted where the psychiatric condition produces 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where the psychiatric condition produces 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted where the psychiatric condition results in 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; memory loss for names of close relatives, own occupation or own name. Id. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21 (2018); Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Global Assessment Functioning (GAF) scores of 61-70 indicate some mild symptoms or some difficulty in social, occupational, or school functioning, with the ability to generally function pretty well and have some meaningful personal relationships. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) (1994). GAF scores of 51-60 indicate moderate symptoms, such as a flat affect, circumstantial speech, and occasional panic attacks, or moderate difficulty in social, occupational, or school functioning, as evidenced by having few friends and having conflicts with peers or co-workers. Id. GAF scores of 41-50 indicate serious symptoms, such as suicidal ideation, severe obsessional rituals, and frequent shoplifting, or serious impairment in social, occupational, or school functioning, as evidenced by having no friends and being unable to keep a job. Id. GAF scores of 31 to 40 reflect some impairment in reality testing or communications (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. It is important to note that a GAF score is a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” Richard v. Brown, 9 Vet. App. 266, 267 (1996). Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The Secretary of VA has amended the portion of the Schedule for Rating Disabilities dealing with psychiatric disorders and the associated adjudication regulations to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, and replace them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. However, the amended provisions do not apply to claims that were pending before the Board (i.e., certified for appeal to the Board) on or before August 4, 2014, even if such claims are subsequently remanded to the Agency of Original Jurisdiction. The instant appeal was initially certified to the Board in July 2014. Therefore, the amended version of the Schedule for Rating Disabilities is not for application in the instant appeal. During a September 2010 individual session for treatment of PTSD and depression at a VA Medical Center, the Veteran reported that he enjoyed spending time tending to his goats, horses, and dogs. He had suicidal ideation, but he did not have any plan or intent. He had no personal or family history of suicide attempts. The Veteran had insomnia. In October 2010, the Veteran was afforded a VA examination for his PTSD. The VA examiner reported that the Veteran continued to be moderately to severely anxious and depressed most of the time. He had difficulty sleeping more than four or five hours at night and took up to an hour to fall asleep. The Veteran had some improvement with his anger and irritability with his current medication, but he had mild irritability from time to time. He also had decreased energy from his lack of sleep and occasional crying spells. The VA examiner noted that the Veteran did not have any suicide attempts or panic attacks. The Veteran took medication and went to therapy for treatment. The Veteran worked at a feed mill. He had some decreased attention and concentration; however, he got along reasonably well with others at work. Overall, the Veteran was showing mild to moderate impairment in occupational reliability and productivity as a result of his mental health issues. The Veteran lived with his wife; his three children did not live with him. There was some stress in the marriage secondary to self-isolation, but, overall, he did not have any major issues. He had numerous pets that he took care of and enjoyed spending time with. He did chores around the house. He visited his mother and father on a regular basis. He did welding and horseback riding for relaxation. He watched television, but generally tended to be rather guarded in public places. Overall, the Veteran was showing mild to moderate impairment in social, familial, and recreational adjustment. The VA examiner concluded that the Veteran had mild to moderate impairment in social, occupational, recreational, and familial adjustment. Upon mental status examination, the Veteran was alert, oriented, and cooperative. There were no signs of a thought disorder, looseness of associations, flight of ideas, hallucinations, delusions, obsessions, compulsions, or phobias. The Veteran rated himself as moderately to severely depressed and anxious most of the time. The Veteran had moderate insomnia, decreased energy, occasional crying spells, occasional irritability, but denied suicidal or homicidal ideation, panic attacks or substance abuse. His insight and judgment appeared adequate. The VA examiner noted that the Veteran’s intellectual capacity appeared grossly intact, but he had difficulty with focusing, attention, and concentration. The Veteran had increased startle response, hypervigilance, interpersonal guardedness, avoidance of and exaggerated response to trauma-related triggers, difficulty recalling important parts of the traumatic events, decreased interest in hobbies and social activities, feelings of detachment and estrangement from others, emotional numbing, feelings that his life would be foreshortened, etc. The VA examiner explained that the Veteran was showing mild to moderate impairment in social and occupational functioning. His current level of functioning was dependent upon continuing psychotropic medication. The Veteran was assigned a GAF score of 58. In February 2014, the Veteran’s former representative submitted a private mental status examination, dated April 2013, completed by the licensed clinical psychologist, J.A. The licensed psychologist diagnosed the Veteran with chronic PTSD, cognitive disorder, and recurrent severe major depressive disorder with psychotic features and prominent suicidal ideation. J.A. reported that the Veteran was significantly depressed and a definite suicide risk. He recommended that the Veteran be continuously monitored for suicidal intent. The Veteran reported that he lived with his wife and they had “good days” and “bad days.” The Veteran reported that he was now working for a food mill and had been there for 15 years. However, his emotions were interfering with his job more and more. He had interpersonal problems on the jobs and left jobs because of emotional factors. Upon mental status examination, the licensed psychologist noted that the Veteran’s self-presentation was alert, but vague. The Veteran had fair concentration, but his attention span was short. The Veteran’s speech patterns tended to be coherent, but somewhat hesitant and unsure and frequently leaving out information. The Veteran’s mood was depressed. Although he denied mood swings, he admitted to crying spells and temper problems. The Veteran continued to have suicidal thoughts, but he made no attempts. The Veteran reported that he had assaulted people and done it severely enough to put them in the hospital; however, he denied any plans to harm anyone at this time. The Veteran denied hallucinations or illusions. He reported feelings of supernatural forces or influences, felt the presence of dead people, and felt they were watching him to see what he was doing. He also had insomnia. The psychologist noted that the Veteran’s judgment and insight were fair. The Veteran was assigned a GAF score of 48. In February 2014, the Veteran’s work supervisor, T.A., submitted a buddy statement. T.A. stated that the Veteran had worked for him for 20 years. The Veteran’s work supervisor reported that the Veteran had become a lot more aggressive with others in the last few years and was hard to work with. One day, the Veteran was okay, but the next day, he would “take your head off.” The only reason T.A. worked with the Veteran was because the Veteran helped him a lot over the years with things he did not know. T.A. had been patient with the Veteran, but it was getting harder to do. T.A. reported that the Veteran seemed to be getting worse. In March 2016, the Veteran had a Travel Board hearing. The Veteran testified that he was depressed. He sometimes had suicidal thoughts, but never tried to commit suicide. He had difficulty with short-term and long-term memory, and his relationship with his wife was difficult. The Veteran further asserted that he only got a couple of hours of sleep at night due to his PTSD. He had panic attacks about once or twice a week, and he gets aggravated over small things. The Veteran isolated himself from people and was more into taking care of his animals. The Veteran also worked in the garden. He reported that he worked full time as a maintenance man, but he was ready to retire. He also reported that he rode his motorcycle with some of his friends about two times a month. In March 2016, the Veteran’s former representative submitted a private mental status examination along with a Disability Benefits Questionnaire for PTSD, dated March 2016, completed by the licensed clinical psychologist, J.A. J.A. diagnosed the Veteran with chronic PTSD, to include depression and cognitive disorder. The Veteran reported that he continued to work part-time at his job doing maintenance, that being repairing machinery in a mill making animal food. He reported that his job was going well, although he did have bad days. The psychologist reported that the Veteran’s impairment from his PTSD involved reduced reliability and productivity, difficulty in understanding complex commands, impairment of short- and long-term memory, impaired abstract reasoning, disturbances in motivation and mood, and difficulty establishing and maintaining effective work and social relationships. J.A. reported that the Veteran’s impairment in social functioning due to PTSD was moderate with definite impairment with some aspects of social functioning remaining. The Veteran was working now and his PTSD had moderate impact, definite impairment with some aspects of occupational functioning remaining. PTSD symptoms severely affected other parts of the Veteran’s life, such as marriage, parenting, activities, interests, and friendships. Upon mental status examination, the psychologist noted that the Veteran’s presentation was uneasy, vague, digressive, and that it was necessary to repeat items. The Veteran reported mood swings and temper liability with crying spells. The Veteran felt depressed now on a daily basis. The Veteran had suicidal ideation, but denied firm plans. He had morbid obsessive homicidal thoughts and paranoid ideas. His memory was somewhat spotty and inexact. The Veteran had incessant insomnia. On the DBQ, the psychologist concluded that the Veteran’s PTSD caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. The licensed psychologist assigned the Veteran a GAF score of 55. In a December 2017 mental health note, it was reported that the Veteran had thoughts of killing himself, but did not proceed with plans because of grandkids and animals. The Veteran had been married to his wife since 1980, but got separated in 2016. Him and his wife were still friends, but were taking a break. The Veteran liked horseback riding, gardening, hunting, fishing, and visiting friends. In a June 2018 mental health note, it was reported that the Veteran was not interested in the things he used to enjoy doing, such as riding motorcycles and tending to his animals. Some of his horses passed away, but he was not interested in replacing them. Upon mental status examination, the Veteran appeared appropriately groomed and dressed, and nourished. His speech was clear and normal. The Veteran’s mood was depressed, but his thought process was coherent, relevant, logical and goal-directed. He denied suicidal and homicidal ideations. He denied hallucinations and delusions. His judgment was good and his insight was intact. He was diagnosed with anxiety and depression. The Veteran was to continue with his medications. In September 2018, the Veteran had a VA examination for his PTSD. The VA examiner concluded that the Veteran’s PTSD caused occupational and social impairment with reduced reliability and productivity. The Veteran’s symptoms included: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; impairment of short- and long-term memory; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; obsessional rituals which interfered with routine activities; and impaired impulse control. Upon behavioral observation, the VA examiner reported that the Veteran was casually dressed and neatly groomed, cooperative with good eye contact, and had good rapport. The VA examiner stated that in his opinion, due to the current severity of the symptoms of PTSD that were manifested by the Veteran, it was unlikely that his service-connected disabilities would allow him to function satisfactorily in an occupational environment. The Veteran’s current functional limitations included frequent panic attacks, irritability and anger outburst, suspicious and sometimes full-blown paranoid ideation, social avoidance, daytime sleepiness due to impaired night sleep, and hypervigilance and interpersonal impairments. For the appeal period prior to September 25, 2018, the Board finds that a rating of 70 percent is warranted for the Veteran’s service-connected PTSD. The evidence shows occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, and thinking or mood. Prior to September 25, 2018, the Veteran’s PTSD has been characterized by suicidal ideation, insomnia, depression, panic attacks, occasional crying spells, impaired short and long-term memory, disturbances in motivation and mood, impaired abstract reasoning, and difficulty establishing and maintaining effective work and social relationships. For example, on an April 2013 private mental status examination, the psychologist noted that the Veteran was significantly depressed and a definite suicide risk. He also noted that the Veteran had interpersonal problems on the job and left jobs because of emotional factors. In a February 2014 letter, the Veteran’s former work supervisor reported that the Veteran was aggressive and hard to work with on the job. On a March 2016 private mental status examination, the psychologist concluded that the Veteran’s PTSD caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment and thinking and/or mood. He noted that PTSD symptoms severely affected parts of the Veteran’s life, which included marriage, parenting, activities, and friendships. During his March 2016 hearing, the Veteran reported that he sometimes had suicidal thoughts, difficulty with short- and long-term memory, isolated himself from people, and had difficulty with his wife. Further, during this time period, the Veteran’s GAF scores ranged from 48 to 58, which indicate PTSD symptoms ranging from moderate to serious. Therefore, the Board concludes that the Veteran’s PTSD symptoms most closely approximate the criteria for a 70 percent rating for the period prior to September 25, 2018. However, for the period prior to September 25, 2018, and from September 25, 2018, a 100 percent evaluation is not for assignment. The evidence of record does not support symptoms of total social and occupational impairment. Although the Veteran had suicidal ideation, he did not have any plan or intent to carry it out. In a December 2017 mental health note, it was reported that the Veteran had thoughts of killing himself, but did not proceed with plans because of his grandkids and animals. The Veteran has denied having hallucinations and delusions. The Veteran has also maintained minimum personal hygiene throughout the appeal period. It has not been shown that the Veteran had an intermittent inability to perform activities of daily living. In fact, the evidence revealed that the Veteran rode horses, gardened, took care of his animals, and rode his motorcycle with friends. Therefore, for the entire appeal period, the Veteran was not totally occupationally and socially impaired due to his PTSD. REASONS FOR REMAND Entitlement to a TDIU. A remand is warranted for further development of the claim for a TDIU. The Veteran should be provided with VCAA notice for a TDIU claim and asked to fill out and return a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Additionally, the RO should obtain a TDIU medical opinion to determine the functional impairment caused by the Veteran’s service-connected disabilities. The matter is REMANDED for the following action: 1. Obtain any outstanding pertinent VA or private treatment records and associate with the claims file. 2. Send a VCAA notice letter to the Veteran for his TDIU claim. This notice letter must include (1) a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability); and (2) a VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). The RO should request that the Veteran fill out these forms and submit them to the RO, to determine the Veteran’s employment history. 3. Following completion of the above, the RO should obtain a TDIU opinion to determine the functional impairment caused by all of the Veteran’s service-connected disabilities, in light of his level of education, special training, and previous work experience, as reflected by the evidence of record. The opinion must be provided without consideration or mention of the Veteran’s nonservice-connected disabilities or age. The Veteran’s service-connected disabilities include: PTSD; status post navicular fracture of the right wrist; status post right distal fibula fracture; shell fragment wound (SFW) scarring of the right check; SFW scarring of the left forearm; and scarring of the left and right forehead. A rationale for the requested opinion should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in the medical community at large and not those of the particular examiner. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Crawford, Associate Counsel