Citation Nr: 1807304 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-14 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder. 2. Entitlement to a total rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD J.L. Ivey, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1993 to February 1995, from October 2003 to February 2005, and October 2006 to October 2009, including service in Iraq from February to December 2004 and from May 2007 to July 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated September 2011 and August 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDINGS OF FACT 1. The Veteran's service-connected PTSD is not manifested by total occupational and social impairment. 2. The Veteran's service-connected PTSD renders him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 2. The criteria for TDIU have been met. 38 U.S.C. §§ 1110, 1155 (2012); 38 C.F.R. §§ 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2017). When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Under 38 C.F.R. § 4.130, Diagnostic Code 9411, which pertains to the Veteran's PTSD, a 70 percent rating is warranted where the disorder is manifested by 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 that is 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 an inability to establish and maintain effective relationships. 38 C.F.R. § 130, Diagnostic Code 9411. The criteria for a 100 percent rating are 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. Ratings of psychiatric disabilities shall be assigned 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. Further, ratings are assigned according to the manifestation of particular symptoms. However, the various symptoms listed after the terms "occupational and social impairment with deficiencies in most areas" and "total occupational and social impairment" in 38 C.F.R. § 4.130 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Global Assessment of Functioning (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). A GAF of 21-30 indicates behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g. sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g. stays in bed all day; no job, home, or friends). American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994) (DSM-IV). A GAF of 31-40 is defined as exhibiting some impairment in reality testing or communication (speech is at times illogical, obscure, or irrelevant), or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood, (a depressed man that avoids friends, neglects family, and is unable to work; a child that frequently beats up younger children, is defiant at home, and is failing at school). Id. A GAF score of 41-50 is assigned where there are 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). Id. A GAF score of 51 to 60 is indicative of moderate symptoms (flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (few friends, conflicts with peers or co-workers). Id. Facts and Analysis - PTSD The Veteran's service-connected PTSD is currently rated at 70 percent for the entire appeal period. The Veteran received a VA mental health examination in August 2011. The Veteran reported moderate PTSD symptoms including re-experiencing trauma, avoidance behavior, and hyperarousal. He reported poor sleep, agitation around others, trouble concentration, flat affect, detachment from others, and feeling withdrawn from life. The Veteran reported a loving relationship with his mother and one sibling. He reported a fair relationship with his spouse due to feeling distanced and detached; he reported a poor relationship with his children because he could not attend their after-school activities due to his PTSD symptoms. The examiner noted that the Veteran was oriented; appearance and hygiene and behavior were appropriate; eye contact was poor; affect was flattened and mood was variable; communication was grossly impaired due to the Veteran being guarded from others; speech was within normal limits; attention and focus were impaired; panic attacks were absent; there were no reported delusions or hallucinations, nor were any observed; obsessive compulsive behavior was absent. Thought processes were slowed; judgment was not impaired; abstract thinking was normal; memory was within normal limits; suicidal and homicidal ideation were absent. The diagnostic impression was PTSD and the examiner opined that the Veteran was totally disabled due to PTSD at that time due to chronic sleep impairment, poor concentration, mood swings and detachment from others. The examiner stated the Veteran was competent to handle funds. GAF was 50. In February 2012, the Veteran had a psychiatric evaluation in connection with a Social Security Administration (SSA) disability claim. The provider noted the Veteran arrived fifteen minutes early for his appointment, had driven himself, and had denied any difficulty finding the location. He was causally addressed and adequately groomed; attitude was cooperative and motor behavior was within normal limits. He reported the following symptoms: feeling depressed two times a week; being overly sensitive to what's in his environment (will scan the road while driving to look for IEDs); dislike and avoidance of crowds; preference to be at home and avoids going out; lacks a feeling of safety in public faces; heart races when hearing a whistle sound; inconsistent sleep patterns including chronic sleep impairment; preference to be alone; nightmares of being on active duty three to four times a week; anxiety attacks once or twice a week; re-experiencing traumatic memories of witnessing people getting shot; and loss of appetite. The Veteran reported he currently lived with his spouse and two children and that he was able to take care of all his activities of daily living. He reported he got up early to take the children to the school bus and later picked his children up from school or sporting events (which he no longer attended). He also noted that he sometimes performed light household duties. Mental status examination was as follows: attitude was cooperative; behavior was appropriate; provider noted Veteran appeared to minimize symptoms; speech was normal in tone, rate, clarity and intensity; mood appeared dysphoric with congruent affect; thought process was linear with no evidence of confabulation, loose associates or blocking; thought content was coherent; perceptual disturbances such as auditory and visual hallucinations were denied and were not observed. The provider remarked that the Veteran appeared to minimize his symptoms and lacked insight into his mental health issues. The provider stated that the Veteran appeared able to understand, retain and follow instructions and sustain attention to perform simple repetitive tasks. Moreover, the provider stated he appeared capable of appropriately interacting with family members, co-workers, and peers; however, he did not appear able to tolerate the stressors and pressures associated with a normal workday. An April 2012 questionnaire completed in connection with a disability claim SSA reflects the Veteran got up early in the morning, ate breakfast, took medicine for his back, and took his children to their bus stop. He also reported that he spent the rest of the day at home before picking them up from school, so long as his back pain didn't prevent it. Later in the questionnaire, he reported going to the high school daily to pick up his children. The Veteran reported that he occasional helped with laundry and cleaning, went outside twice a day, drove a car, and occasionally shopped for personal items when needed. The Veteran also reported that he payed bills, could count change, could handle a savings account, and use a checkbook and/or money orders. In June 2014, the Veteran had a full intake appointment with the VA PTSD clinic. He reported that he was not currently seeking employment because "I don't want to be around people, I don't feel comfortable. I don't want people walking up behind me." He reported living with his wife of 21 years and their two children, ages 19 and 21. He stated that symptoms of PTSD had a negative impact on his family life due to conflicts arising with his discomfort attending functions and events with his family such as children's football games, track meets, and graduations. He also reported that he regularly drove his daughter to school. The Veteran reported significant social withdrawal and isolation since his deployment, stating that he felt like he was "in prison," although it was difficult for him to engage in activities outside of his home because it was the only place he felt safe. Mental status examination revealed the Veteran arrived 30 minutes early to the appointment; he was casually dressed with appropriate grooming; alert and oriented with appropriate eye contact; speech was within normal limits in rate, tone and volume. The Veteran exhibited linear, goal-directed cognition and there was no evidence of a thought disorder. Affect was appropriate to content of the session. The Veteran endorsed fleeting, passive suicidal ideation but he denied active suicidal ideation, intent or plan. He denied homicidal ideation. The Veteran had a private examination with H. H.-G. in July 2014. The Veteran reported great ongoing difficulty with his symptom patter, remarking that he could not enjoy the simplest of activities. The Veteran reported that he lived in his home with his spouse and a friend's child. He kept is struggles to himself and was socially isolated and withdrawn. He reported assistance from his spouse in performing daily living tasks; she did the food shopping, meal preparation, and household chores. The Veteran reported that if he had to cook, he would prepare a sandwich and he also reported helping with the laundry about once a month. He reported that his spouse gave him subtle reminders to maintain his personal hygiene and that he showered about twice a week. The Veteran reported auditory hallucinations consisting of hearing knocking noises when no one is there. He also suffered from chronic sleep impairment and difficulty establishing and maintaining relationships, difficulty adjusting to stressful circumstances, and mild memory loss. Symptoms boxes checked by the examiner 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; flattened affect; disturbances of motivation or mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships; suicidal ideation; persistent delusions or hallucinations; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Mental status examination revealed attention was normal; concentration was variable; Vet complained of short and long-term memory loss trouble, including struggles with remembering basic information. The Veteran's speech flow was normal, although he was brief with information offered. Thought content was appropriate for the circumstances and organization of thought was goal-oriented. Fund of knowledge, intellectual ability, capacity of abstraction, and ability to interpret proverbs all appeared to be below average. Judgement was average; mood was anxious and nervous; and affect was restricted. The provider noted that the Veteran was vague with responses, was suspicious, and seemed rather vigilant. The provider opined that the Veteran could not sustain the stress from a competitive work environment and could not be expected to engage in gainful activity secondary to his PTSD in combination with his service connected back disability and tinnitus. She further stated the Veteran was currently unable to establish and maintain effective work/school and social relationships because of poor behavioral controls and detachment. She stated he was not able to maintain effective family role functioning for the same reasons. The Board finds that the preponderance of evidence reflects that the Veteran's PTSD symptoms are moderate to severe in nature and cause significant occupational and social impairment; however, they are not manifested by total occupational and social impairment consistent with a 100 percent evaluation under 38 C.F.R. § 130. The only symptom that is even suggestive of a 100 percent rating is the Veteran's report of auditory hallucinations in the July 2014 private examination report. That report also suggested the Veteran had intermittent inability to maintain personal hygiene, but this conclusion is not supported by the accompanying report, which reflects the Veteran was able to maintain his personal hygiene but sometimes needed a gentle reminder from his spouse to do so. As the preponderance of the evidence reflects the Veteran is not totally occupationally and socially impaired, a 100 percent rating for PTSD is not warranted. The evidence shows the Veteran maintains relationships with his spouse, mother, a sibling and his children. Further, he drives on a near daily basis, consistently taking his children to the bus stop and home from school unless his back is hurting. Further, he occasionally engages in other activities such as chores and shopping when necessary. These activities show that the Veteran is not totally socially and occupationally impaired consistent with a 100 percent rating under VA regulations. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU The Veteran asserts that due to his psychiatric disability and back pain he is unable to work. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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). The Veteran's currently-assigned disability ratings meet the criteria for consideration of TDIU on a schedular basis for the entire appeal period VA will grant a total rating for compensation purposes based on individual unemployability when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. § 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). All the psychiatric evaluations the Veteran has received during the appeal period reflect that he is unable to obtain and maintain substantially gainful employment due to his PTSD symptomatology. Numerous evaluations conducted by SSA in connection with a disability claim reflect the Veteran has severe limitations due to his service-connected PTSD and back disabilities. See, e.g., February 2012 SSA evaluation ("he does not appear able to tolerate the stressors and pressures associated with a normal workday"). A private occupational evaluation by Dr. S.B. dated August 2014 is of record and it also reflects the Veteran is unable to obtain and maintain substantially gainful employment due to a combination of his service-connected disabilities. As such, the Board finds that the evidence clearly reflects the Veteran is unemployable due to his service-connected PTSD. As such, a TDIU is warranted for the entire appeal period. ORDER Entitlement to a rating in excess of 70 percent for PTSD is denied. Subject to the laws and regulations governing the payment of monetary benefits, TDIU is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs