Citation Nr: 1806860	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  14-15 976	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Prior to March 30, 2016, entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD).

2.  Prior to March 30, 2016, entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Virginia A. Girard-Brady, Attorney at Law


ATTORNEY FOR THE BOARD

T.L. Bernal, Associate Counsel



INTRODUCTION

The Veteran had active military service from January 1969 to January 1971.

This case comes before the Board of Veterans' Appeals (Board) from an appeal of an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.


FINDINGS OF FACT

1.  Prior to March 30, 2016, the Veteran's PTSD has not been manifested by circumstantial, circumlocutory, or stereotyped speech; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships.

2.  Prior to March 30, 2016, the Veteran's disability rating did not met the schedular requirements for consideration of a TDIU and his PTSD symptoms were not of the severity to warrant referral for extraschedular consideration.


CONCLUSIONS OF LAW

1.  Prior to March 30, 2016, the criteria for an initial rating in excess of 30 percent for PTSD were not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017).

2.  Prior to March 30, 2016, the criteria for a TDIU were not been met.  38 U.S.C. §§1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2017)



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Increased Rating for PTSD prior to March 30, 2016

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability ratings shall be applied, the higher rating is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.

Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, including the appropriateness of staged ratings whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007).  The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.  Id. 

The Board has reviewed all the evidence in the Veteran's electronic file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran's service-connected PTSD has been rated under 38 C.F.R. § 4.130, Diagnostic Code 9411.  Psychiatric disabilities are rated under the General Rating Formula for Mental Disorders.  Upon review, the Board finds that no other diagnostic code or rating schedule would be appropriate in the evaluation of the Veteran's psychiatric disability.

Under the General Rating Formula for Mental Disorders, 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).  38 C.F.R. § 4.130, Diagnostic Code 9411.

A 50 percent rating is warranted if it is productive of 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 compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

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); and inability to establish and maintain effective relationships.  The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood.  Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001).

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; memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. § 4.130, Diagnostic Code 9411.

The symptoms cited above follow the phrase "such symptoms as" which indicates that the symptoms after that phrase 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 rating.  Accordingly, the Board has not required the presence of all or most of the enumerated symptoms for any particular rating.  The list of symptoms merely provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each Veteran and disorder, and the effect of those symptoms on the claimant's social and work situation.  The Board must consider all symptoms of the Veteran's condition which affect the level of occupational and social impairment.  If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned.  Mauerhan v. Principi, 16 Vet. App. 436, 441-443 (2002).

In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing [V]eterans on a disability spectrum based upon their objectively observable symptoms."  The Federal Circuit stated that "a [V]eteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration."  It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas."  Id. 

The Board observes 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130 were updated via an interim final rule, made immediately effective August 4, 2014, in part to substitute references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) for the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).  The Secretary directed that the changes be applied to applications for benefits received by VA or pending before the AOJ on or after August 4, 2014, but not to claims certified to or pending before the Board, the United States Court of Appeals for Veterans Claims (Court), or the United States Court of Appeals for the Federal Circuit.  79 Fed. Reg. 45, 093, 45,094-096 (Aug. 4, 2014); Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991).  Since the Veteran's claim was certified to the Board in February 2017, the DSM-5 applies.

Prior to August 4, 2014, diagnoses many times included an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score.  The GAF is a scale 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).  The use of GAF scores has been abandoned in the DSM-5 because of, among other reasons, "its conceptual lack of clarity" and "questionable psychometrics in routine practice."  See DSM-5, p. 16 (2013).  In this case, however, the DSM-IV was in use at the time some medical entries of record were made.  Thus, the GAF scores assigned remain relevant for consideration in this appeal.  Id.

The GAF is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness."  American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM), 32 (4th Ed.) (1994) (DSM IV); 38 C.F.R. 
§§ 4.125, 4.130.  A GAF score between 71 through 80 is indicative that, if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in school work).  Scores ranging from 61 through 70 reflect some 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, and has some meaningful interpersonal relationships.  Scores ranging from 51 through 60 reflect 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 co-workers).  Scores ranging from 41 through 50 reflect serious 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).  A GAF score of from 31 through 40 contemplates some impairment in reality testing or communication (e.g., speech 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).  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).

This case originally came before the Board on appeal of a June 2004 RO decision denying entitlement to service connection for chronic schizophrenia of the undifferentiated type, as well as for a psychotic disorder not otherwise specified, claimed as mental stress and PTSD.  In an August 2007 decision the Board continued denial of service connection for PTSD.  The Veteran subsequently appealed that decision to the Court, which in a Memorandum Decision of September 2009, vacated the Board's August 2007 decision, and remanded the Veteran's case back to the Board for action consistent with that Memorandum Decision.  In May 2010, the case went before the Board again and it was remanded back to the RO in order to obtain pertinent medical records and again review the record.  

In October 2010, the RO granted service connection for PTSD and assigned a 30 percent rating with an effective date of September 29, 2006, the date that a VA examiner first diagnosed the Veteran with PTSD.  The Veteran filed a Notice of Disagreement (NOD) in October 2011 disagreeing with the assigned rating of 30 percent.  In a March 2016 rating decision the RO granted a 100 percent rating for PTSD effective March 30, 2016.  The Veteran then perfected an appeal for an increased rating for PTSD.  Since the Veteran has obtained a full grant of benefits for PTSD from March 30, 2016 onward, the period upon appeal is from September 29, 2006 to March 30, 2016.

The relevant evidence includes a June 2006 record reflecting that the Veteran was seen by a VA mental health care provider and diagnosed with chronic PTSD and assigned a GAF score of 48.  The Veteran was noted as having nightmares and intrusive thoughts related to his combat experiences.  In June 2008, another VA physician assigned a GAF score of 48 and noted that the Veteran was having marital problems and suffering social isolation.  In November 2009, the Veteran was noted as being disheveled in appearance, guarded, uncooperative, and his thought process was "fluid."  The Veteran denied suicidal/homicidal ideations as well as visual hallucinations.  However, the Veteran did admit to hearing the sounds of "bullets flying past him."  The physician assigned him a GAF score of 49 at that time.

In September 2010 the Veteran was provided a VA examination.  At that examination, the Veteran was noted to be clean and his psychomotor activity was unremarkable.  His speech was hesitant, and he was cooperative and suspicious of the examiner.  His affect was blunted and his mood was anxious.  His attention was intact; he was oriented to person, time, and place; his thought process was rambling, his thought content was unremarkable; and he displayed no delusions.  As to judgment, he understood the outcome of his behavior; and as to insight, he understood he had problems.  He had sleep impairment, but no hallucinations, inappropriate behavior, or obsessive/ritualistic behavior.  He was able to interpret proverbs properly.  He had daily panic attacks.  He did not have homicidal or suicidal thoughts, he had good impulse control, and there were no episodes of violence.  As to memory, he had normal remote and immediate memory, and mildly impaired recent memory.  The examiner noted that the Veteran had recurrent and intrusive distressing recollections of his combat experience as well as intense psychological distress at the exposure to internal or external cues that symbolize or resemble an aspect of the trauma he was exposed to during combat.  The examiner noted difficulty with concentrating and being around others.  The examiner also noted that the Veteran's PTSD symptoms have interfered with his quality of life as well as other important areas of functioning.  He was married for 44 years with periods of separation, did not get along with his wife, and his social contact was mainly with family.  A GAF score of 62 was assigned.  

Based on the evidence, the Board finds that a higher evaluation is not warranted.  The Veteran's symptoms during this period are contemplated by the 30 percent evaluation.  While the Veteran had daily panic attacks and blunted speech, he does not have circumstantial, circumlocutory, or stereotyped speech; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships.  In fact, the evidence shows that he has hesitant speech, no impairment of judgment or thought content, and his remote and immediate memory were intact.  He had been married to his wife for over 40 years, albeit with long periods of separation, and was able to maintain his marriage and he had social contact with his family.  His anxiety, suspiciousness, sleep impairment, mild memory loss are already contemplated by the current evaluation.    

Additionally, the Veteran's GAF scores of 48, 49, and 62 are in line with the current 30 percent evaluation.  As noted above, scores ranging from 61 through 70 reflect some 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, and has some meaningful interpersonal relationships.  Scores ranging from 41 through 50 reflect serious 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).

Moreover, a 70 percent rating is not warranted as there is evidence of  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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships.  Neither is a 100 percent rating warranted as there was no 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.  

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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).

TDIU prior to March 30, 2016

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow a "substantially gainful" occupation (i.e. work which is more than marginal, that permits the individual to earn a "living wage," 38 C.F.R. § 4.16 (b); Moore v. Derwinski, 1 Vet. App. 356 (1991), as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16 (a).

Under VA regulations, when a claimant fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16 (a), the RO may submit such case to the Director, Compensation and Pension Service (Director), for extraschedular consideration.  38 C.F.R. § 4.16 (b).  The Board is precluded from granting a total rating under section 4.16(b) because the authority to grant such a rating is vested specifically in the Director.  Should the Board find that a case it is reviewing on appeal is worthy of consideration under section 4.16(b), the Board may remand the case to the RO for referral to the Director, but the Board may not grant a total rating in the first instance.  See Floyd v. Brown, 9 Vet. App. 88, 95 (1996) (noting that Board may consider whether referral to "appropriate first-line officials" for extra-schedular rating is required); see also Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Thus, the decision by the RO whether to refer a case to the Director for extra-schedular consideration is an adjudicative decision subject to review by the Board.  Moreover, where there has been a review by the Director, that determination is subject to review by the Board on appeal.  Anderson v. Shinseki, 22 Vet. App. 423, 277-28 (2009) (noting that "although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the denial of an extraschedular rating on appeal.").

Entitlement to TDIU requires the presence of an impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19. 

Prior to March 30, 2016, the Veteran had only one service-connected disability, PTSD, which was rated as rated 30 percent disabling.  Thus, the Veteran does not meet the schedular criteria for consideration of a TDIU.  However, the Board must consider whether referral to the Director for extraschedular consideration is warranted.  In this case, such referral is not warranted.

The evidence shows that the Veteran completed two years of junior college.  He has been unemployed since 2004, and he last worked in 2004 as a groundskeeper and maintenance person in a park.  His previous work experience included being a truck driver.   

The September 2010 VA examiner noted that the Veteran's chronic pain had
a significant impact on his ability to work.  

Another September 2010 examination report reflected that based upon review of the Veteran's entire records, a VA examiner opined that there was no evidence that the Veteran was not capable of obtaining or maintaining substantially gainful employment due the PTSD.  She found it was as likely as not that his on-going diagnosis of marijuana dependence/abuse made it less likely than not that he was motivated for employment but there was no indication that the severity of his PTSD was such that they would render him incapable of substantially gainful employment.  

Based on the foregoing, the Board finds that in light of the Veteran's work history and skill set, the evidence has not shown that he would be unable to obtain and maintain employment based solely on his service-connected PTSD for the period prior to March 30, 2016.  Thus, the Board finds that referral to the Director for extraschedular consideration is not warranted at this time.  The appeal is denied.



ORDER

Prior to March 30, 2016, entitlement to an initial rating in excess of 30 percent for PTSD is denied.

Prior to March 30, 2016, the issue of entitlement to TDIU is denied.





____________________________________________
LANA K. JENG
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs