Citation Nr: 18159301 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 06-00 364A DATE: December 19, 2018 ORDER Entitlement to a rating higher of 70 percent, but no higher, from May 17, 2004 (excluding a temporary total rating of 100 percent to 38 C.F.R. § 4.29) for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to PTSD is granted. FINDINGS OF FACT 1. Resolving any reasonable doubt in the Veteran’s favor, throughout the entire timeframe on appeal, his PTSD is manifested by symptoms consistent with occupational and social impairment that involves deficiencies in most areas. 2. The Veteran’s PTSD has precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. For the entire timeframe on appeal, the criteria for a rating of 70 percent for the Veteran’s PTSD have been satisfied. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code (DC) 9400. 2. The criteria for TDIU due to PTSD have been satisfied. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1970 to July 1972. This matter is before the Board of Veterans’ Appeals (Board) on appeal from July 2005 and April 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office. In September 2010, the Veteran and his wife testified at a before the undersigned Veterans Law Judge; a transcript of which is attached to the claims file. These matters were most recently before the Board in October 2017, when they were remanded for additional development, to include scheduling for a new examination. Higher Rating for PTSD The Veteran seeks an increased rating for his PTSD and entitlement to TDIU. Excluding a temporary total rating of 100 percent pursuant to 38 C.F.R. § 4.29 from September 13, 2012 to November 30, 2012, the Veteran’s PTSD is rated as 50 percent disabling from May 17, 2004 under 38 C.F.R. § 4.130, DC 9411. Under DC 9411, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as a 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; or difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is assigned for 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); or the inability to establish and maintain effective relationships. Id. Finally, a 100 percent rating is assigned 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; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for the names Of close relatives, own occupation, or own name. Id. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 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. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas” – i.e., “the regulation...requires an ultimate factual conclusion as to the Veteran’s level of impairment in most areas.” Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, DC 9411. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “assign an evaluation 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). The Board notes that the revised DSM-V, which, among other things, eliminates GAF scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (Aug. 4, 2014). However, since the Veteran’s PTSD claim was originally appealed to the Board prior to the adoption of the DSM-V, the DSM-IV criteria, including GAF scores, will be utilized in the Board’s analysis. According to DSM-IV, a GAF score between 51 and 60 is indicative of moderate 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 coworkers). As detailed below, the Board finds that the weight of the evidence supports a rating of 70 percent for PTSD throughout the entire timeframe on appeal and a grant of TDIU. As the Veteran’s representative clearly expressed satisfaction with this grant in correspondence dated January 2018, this decision represents the full benefit sought on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Turning to the evidence, during a June 2005 VA examination, the Veteran reported missing work as a drywall finisher due to doctor’s appointments, his PTSD, and his need to “stay home” when he does not “want to be around people.” The Veteran denied any social activities or involvement, and reported he had ended an eight-year relationship because of his need to be alone. On mental status examination, he was oriented but reported some symptoms of occasional confusion. Impairment of impulse control and mild sleep disturbance were noted. Symptoms including flashbacks and nightmares, hypervigilance, and general demoralization due to psychological symptoms were also noted. He endorsed a recent episode of impaired impulse control where he “dropped a salad and reportedly smashed all of the dinner bowls and threw everything away.” The examiner concluded that PTSD was moderate in severity, and assigned a GAF of 51. The examiner also indicated that, despite the Veteran having a past history of diagnosable alcohol abuse, it appeared to be in sustained remission. A July 2005 statement from a VA treating physician indicated that, in addition to PTSD, the Veteran’s comorbid conditions included depression and a remote history of alcohol abuse in full remission. It was noted the Veteran suffered from intrusive memories, avoidance behavior, and hypervigilance. PTSD had led to complications/altercations at work and he had been laid off for a few days to his issues. In March 2005, the Veteran indicated that he had been working 90 hours as an avoidance strategy, as it was effective in “treating” his PTSD symptoms. In October 2005, the Veteran reported he had continued to work more than 90 hours a week. His PTSD symptoms were under control, as he worked by himself. His GAF score was assessed as 50. The following year, the Veteran reported restarting the use of the medication citalopram after “a long period of time off of all meds.” At that time, he had been working 12- to 18-hour days as a drywaller. The Veteran reported looking forward to retiring so that he could “get the heck out of dodge.” His GAF score was 65. During the March 2007 VA examination, the Veteran reported that he “had to retire in January 2007” and that he had been out of his home only a dozen times since the beginning of the year. He reported he had quit teaching CPR after nine years, as he could no longer “keep up with work and his medications.” He reported his inability to be around people and get out of bed. On mental status exam, no impairment of thought process or communication, to include hallucination or delusion, were noted. The Veteran denied suicidal ideation, memory impairment, obsessive or ritualistic behaviors, panic attacks, and impaired impulse control. He was oriented. He stated that he slept for only three hours a night with “a lot” of naps during the day. The examiner “found, it interesting that the Veteran now contends that he is unemployable due to his PTSD and other physical problems, especially in light of the fact that he was recently working up until [three months ago], putting in a lot of hours.” The examiner assessed his GAF for PTSD as 50, and attributed the October 2006 GAF of 65 to the Veteran having been compliant with his medications at that time. The examiner continued the diagnosis of alcohol abuse in full remission and indicated it did not affect the Veteran’s quality of life. He was given a GAF score for alcohol abuse of 85. A July 2007 mental health note showed a GAF score of 65, and noted the Veteran was actively taking mental health-related medication. In May 2008, his GAF score remained 65, and he was reportedly “quite busy with volunteering/working at the local VFW.” He had also recently traveled from Wisconsin to Washington, DC to see memorials there and had "put in 85 hours over the past 2 weeks.” In addition, the Veteran attended military funerals as a member of a rifle team. An increase in his medication had been productive in reducing irritability and frustration, as he had been “forcing (himself) to be out in the world.” On VA examination in March 2009 the Veteran reported his continued dislike of people and nightly nightmares. He had been living with his mother since retiring and spent his free time watching television. On mental status exam, there was no evidence of impairment of thought process or communication, to include hallucination or delusion. The Veteran denied suicidal ideation, memory impairment, obsessive or ritualistic behaviors, and panic attacks. The Veteran was oriented, but continued to endorse behavioral, cognitive, social, and affective symptoms attributable to PTSD, including intrusive thoughts and nightmares. He reported avoidance and numbing around some situations, as well as ongoing heightened physical arousal, irritability, poor concentration, hypervigilance and exaggerated startle response. The examiner assessed a GAF score of 55, and concluded that the Veteran’s PTSD symptoms resulted in reduced reliability and productivity. The examiner found non-service related alcohol abuse to be in full remission with GAF score of 85. A May 2011 mental health note indicated the Veteran was retired, somewhat socially isolated from friends, but felt a strong connection with his uncle. He volunteered at the VFW. The veteran reported some irritability, startle response with loud noises or someone awakening him. He reported flashbacks and avoided “stupid people” and talking about past experiences. The Veteran’s alcohol abuse was in sustained remission. He was assessed a GAF of 60. On VA examination in August 2011, the examiner noted that in addition to PTSD, the Veteran also had depression, which accounted for his symptoms of procrastination, apathy, low energy, and low desire. Other mental health symptoms were attributable to PTSD and resulted in occupational and social impairment with occasional decreased work efficiency and intermittent periods of inability to perform occupational tasks. PTSD alone caused the Veteran to prefer to work alone, to have difficulty dealing with other people, and caused anger management issues. Current symptoms included recurrent recollections and distressing dreams of his stressor event, avoidance behavior, feelings of detachment from others, difficulty falling or staying asleep, irritability, anger, hypervigilance., startle response, and difficulty concentrating. His mood was depressed and he was anxious, with chronic sleep impairment, mild memory loss, disturbance of mood and motivation, and difficulty establishing and maintain effective relationships. His GAF score was between 55 and 60. The examiner continued the diagnosis of alcohol abuse, in remission. The examiner noted the Veteran’s denial of any recent alcohol or drug use and his report of being sober for 10 years. The record also shows that the Veteran was arrested for his fifth and sixth DUI in January and April 2012, for which he was subsequently incarcerated for roughly three years. Prior to that incarceration, the Veteran was hospitalized for treatment of his PTSD from September 2012 to November 2012. In July 2017, the Veteran underwent a private psychological assessment. The psychologist reported the Veteran had a long history of utilizing alcohol and overwork to self-medicate and distract himself from his PTSD symptoms. The examiner found “it is at least as likely as not that the issues with alcohol abuse documented in [the Veteran’s] claim file are caused by his service-connected PTSD.” In December 2017, the veteran reported he had not worked since 2006 due to “medical/physical problems.” Symptoms included depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. On mental status examination, the Veteran was oriented but somewhat disheveled and in a wheelchair. Affect was congruent and oddly engaging and thought processes were somewhat tangential. He endorsed “continuous” anxiety, panic attacks, and depression “all the time.” Memory was generally intact with some impairment at times. Sleep was impaired despite his medication use. Appetite was “on and off” and energy level was “real low.” He socialized on a limited basis, primarily with his mother and sisters. He reported he had been a director of military funeral in the past but quit because of “medical/physical issues.” The Veteran was diagnosed with PTSD, major depressive disorder, and alcohol abuse. Based on the conflicting evidence of record with regard ot the Veteran’s alcohol abuse, in May 2018, VA requested a medical expert opinion to determine whether the Veteran’s alcohol abuse disorder is secondary to the service-connected PTSD. In June 2018, a VA examiner found it is at least as likely as not that the Veteran’s diagnosed alcohol abuse disorder was caused by, or is a symptom of PTSD. Resolving any reasonable doubt in the Veteran’s favor, the Board finds that his overall disability picture for PTSD more nearly approximates the criteria for the assignment of a 70 percent rating throughout the entire timeframe on appeal. The Veteran’s symptoms include those such as depression, panic attacks, hypervigilance, impaired sleep, anxiety, isolation, irritability, anger outbursts, mood and motivation problems, and an inability to establish and maintain effective relationships result in occupational and social impairment deficiencies in most areas, such as work, family relations, thinking, and mood. Although the Veteran’s GAF scores are mostly indicative of moderate PTSD symptoms, the Board finds the severity of his PTSD symptoms, including his long history of overwork and alcohol abuse (which resulted in six DUIs) to self-medicate and distract himself from his PTSD symptoms; a 2012 hospitalization which is indicative of heightened PTSD symptoms; social impairment at work and in personal relationships (e.g., loss of eight-year relationship due to wanting to be left alone and refusal to participate on the rifle squad for funerals); and impulse control issues (e.g., dropped a salad and reportedly smashed all of the dinner bowls and threw everything away) warrant the higher 70 percent disability rating. The competent medical evidence indicates the Veteran’s symptoms have remained relatively consistent throughout the appeal period; therefore, “staged” ratings are not warranted. 38 C.F.R. § 4.71a; Hart, 21 Vet. App. 505. As the grant of TDIU below represents the full benefit sought, no further discussion is required regarding entitlement to a rating higher than 70 percent for PTSD. TDIU As indicated, the Board finds that TDIU due to PTSD is warranted. The Veteran has been unemployed and the criteria for TDIU under 38 C.F.R. § 4.16(a) are met. Records reflect that the Veteran has an associate’s degree. The Veteran’s post-military work history includes employment as a cashier and drywall finisher. However, as reported by the Veteran, he missed multiple days of work due to doctors’ appointments and PTSD symptoms and “had to retire in January 2007.” Although a May 2010 medical note indicates the Veteran continued to have some drywall jobs on the side and a July 2011 medical note indicates the Veteran was working part-time, the Veteran has been hospitalized for his PTSD symptoms and he has a significantly long history of alcohol abuse that is related to his PTSD. The Board also notes that a July 2017 private psychologist opined that is more likely than not that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his PTSD since at least 2008 when he last worked full-time as a dry wall finisher. In consideration of the Veteran’s narrow work history and the severity of his PTSD symptoms (noted above), particularly his difficulty with interpersonal relationships, inability to establish and maintain effective relationships, and long history of alcohol abuse, the Board finds that PTSD has precluded the Veteran from securing or following a substantially gainful occupation. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel