Citation Nr: 1807320 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 12-06 160 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for post-traumatic stress disorder (PTSD) prior to September 21, 2016. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Ko, Associate Counsel INTRODUCTION The Veteran had active service from December 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board remanded the case in July 2016 for further development. In a March 2017 rating decision, the Veteran was granted a maximum 100 percent rating for PTSD, effective September 21, 2016. While the RO assigned a higher rating for the Veteran's service-connected PTSD during the pendency of this appeal, because a higher rating is available before September 21, 2016, and the Veteran seeks the maximum available benefit, the claim for a initial rating in excess of 50 percent for PTSD for the period prior to September 21, 2016 remains on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); AB v. Brown, 6 Vet. App. 35 (1993). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Since October 26, 2010, the effective date of the grant of service connection to September 20, 2016, the Veteran's PTSD symptoms have more nearly approximated occupation and social impairment with deficiencies in most areas, but symptoms of total occupational and social impairment have not been demonstrated. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for an initial 70 percent rating, but not higher, for PTSD, from the October 26, 2010 effective date of service connection to September 20, 2016, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran nor his representative 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 Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall 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). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but will not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran's service-connected PTSD is rated as 50 percent disabling from the October 26, 2010 effective date of the grant of service connection to September 20, 2016, under 38 C.F.R. § 4.130, Diagnostic Code 9411. A General Rating formula for evaluating psychiatric impairment other than eating disorders contains the actual rating criteria for evaluating the Veteran's disability. Pursuant to this General Rating formula, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once per 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. A 70 percent rating is warranted 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 that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately, and effectively; impaired impulse control (e.g., unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (e.g., work or work like setting); inability to establish/maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; 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, General Rating Formula for Mental Disorders (2016). Reports of psychiatric examination and treatment frequently include a GAF score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), a GAF scale includes scores ranging from 0 to 100 which represent the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health- illness. The GAF score and the interpretations of the score are important considerations in rating a psychiatric disability. Richard v. Brown, 9 Vet. App. 266 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned, like an examiner's assessment of the severity of a condition, is not dispositive of the rating issue. Rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. 38 C.F.R. § 4.126(a). Analysis In a September 2005 letter, C. D. King, a licensed professional counselor/supervisor and psychoeducational specialist, described the Veteran as frustrated and very angry. He noted that the Veteran was having problems in his marriage due to his intermittent "rages." C. D. King found that the Veteran's PTSD was manifested by intermittent explosive episodes, persistent and chronic depression, and self-reported physical problems. In two January 2011 letters, the Veteran reported having nightmares about past military experiences, waking up at night in a cold sweat, and having flashbacks triggered by certain smells and noises. According to a January 2011 letter by W. J. Ellis, a licensed independent social worker, the Veteran had major anger issues for several years, went into rages, and was consistently verbally abusive towards his wife. Further, the Veteran had two adult step-sons who, according to the Veteran, "tolerated" him. W. J. Ellis stated that the Veteran's PTSD and depression were manifested by avoidance, isolation, intrusive memories, psychological and physiological reactions to environmental triggers, hypervigilance, exaggerated startle response, poor sleep, depressed mood, and tearfulness. At a February 2011 VA PTSD examination, the Veteran was punctual, appropriately dressed, neatly groomed, alert and well-oriented, and fairly gruff almost to the point of belligerence. He denied suicidal ideation, but admitted that he had had irrational impulses to hurt others even though he had not acted on them. He admitted to destroying property at home. The Veteran stated he generally did not get along with others and that he did not have good relationships with his adopted child or two step-children due to how he treated them in the past. He reported having occasional flashbacks triggered by helicopters or certain images, difficulties sleeping, nightmares, waking up in a cold sweat, inconsistent appetite, irritability, intrusive thoughts, and poor self-control. The VA examiner diagnosed the Veteran with PTSD and assigned a GAF score of 60. However, the examiner did not review the claims file before conducting the examination. According to a June 2011 letter, F. S. Judkins, a former Vocational Rehabilitation and Employment officer who met the Veteran at his PTSD group sessions at the Vet Center, the February 2011 VA examination was incomplete because the Veteran did not report a majority of his symptoms because he was very guarded. Based on his prior in-depth conversations with the Veteran, F. S. Judkins stated that the Veteran had a severe anger problem which was jeopardizing his second marriage, had no impulse control, often said things to acquaintances that caused difficulties, entered a "fugue state" when a helicopter went by, always traveled with a loaded gun, and often went to the beach to sit in his truck for hours. F. S. Judkins found that the Veteran was extremely socially impaired and majorly occupationally impaired and assigned the Veteran a GAF score of 40 or 41. Generally, VA treatment records from July 2011 to October 2012 reflect reports of sleeping difficulties (i.e., sleeping two to three hours a night in a chair), nightmares, sleep disturbances, night sweats, irritability, anger issues, trust issues, survivor's guilt, avoidance behaviors, isolation, intrusive memories, anxiety, panic attacks, exaggerated startle response, hyper vigilance, depressive mood, memory and concentration difficulties, and passive suicidal ideation with no intent or plan. The Veteran consistently denied active suicidal ideation, homicidal ideation, auditory or visual hallucinations, and alcohol and drug use. In a November 2011 VA treatment record, the nurse found that the Veteran was a substantial threat to himself (i.e., moderate to severe suicide risk). In a July 2012 VA treatment record, the Veteran reported several episodes of anger control issues since his last appointment, including an incident that occurred at the Vet Center. He stated that he was unable to return to the Vet Center until he had a "cool head." In an October 2012 VA treatment record, the Veteran related that due to his anger control issues he was estranged from his biological children and his step-children had animosity towards him. At a January 2012 VA PTSD examination, the Veteran was diagnosed with PTSD and major depressive disorder and assigned a GAF score of 49. The examiner found it was not possible differentiate the symptoms of the Veteran's PTSD and major depressive disorder. The Veteran had symptoms of depressed mood, anxiety, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a work-like setting, inability to establish and maintain effective relationships, suicidal ideation, impaired impulse control, such as unprovoked irritability with periods of violence, and neglect of personal appearance and hygiene. After reviewing the claims file, the examiner found that September 2005, January 2011, and June 2011 statements from C. D. King, W. J. Ellis, and F. S. Judkins were consistent with the examiner's findings. The January 2012 VA examiner found that the Veteran was "devoid of functional social capacity." She noted that the Veteran's wife was the main recipient of his hostility with daily verbal assaults, to include name calling, and that he lacked the ability to express remorse over his actions or apologize for his behaviors. The examiner noted that the Veteran spent his time sitting in his truck at the beach or in his shed, fishing along, or watching television. The Veteran's children did not contact him, to the extent that the Veteran had just learned that he had a new grandchild whom he had not been invited to see. The examiner also found that the Veteran would have difficulties maintaining work. She noted that he had poor impulse control, to include hostility towards strangers. The January 2012 VA examiner concluded that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood due to the symptoms of his diagnosed psychiatric disorders. The January 2012 VA examiner acknowledged that the February 2011 VA examiner diagnosed the Veteran with PTSD and assigned a GAF score of 60, but noted that the Veteran and his wife reported that this examination lasted only about fifteen minutes. The examiner opined that if this were true, then it was highly probably that the February 2011 VA examiner's findings were inaccurate and not reflective of the severity of the Veteran's symptoms. VA is precluded from differentiating between the symptoms of the Veteran's service-connected psychiatric disorder and those of any other mental disorders in the absence of clinical evidence that clearly shows such a distinction. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Furthermore, because all psychiatric disorders, with the exception of eating disorders, are evaluated under the General Rating Formula for Mental Disorders, a single evaluation will be assigned that encompasses all of the Veteran's overlapping psychiatric symptoms, however diagnosed. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (2009). Additionally, the January 2012 VA examiner expressly found that it was not possible differentiate the symptoms of the Veteran's PTSD and major depressive disorder. Therefore, all psychiatric symptoms shall be attributed to the Veteran's now service-connected PTSD for rating purposes. See Mittleider, 11 Vet. App. at 182. Resolving all reasonable doubt in favor of the Veteran, the Board finds that his service-connected PTSD more nearly approximates the criteria for a higher initial 70 percent rating, but not higher, from the October 26, 2010 effective date of the grant of service connection. 38 C.F.R. § 4.7. In granting an initial 70 percent rating for the Veteran's PTSD, the Board has considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assigned rating for PTSD. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Since the October 26, 2010 effective date of the grant of service connection, the Veteran's PTSD symptoms were manifested primarily by sleeping difficulties, nightmares, sleep disturbances, night sweats, irritability, anger issues, trust issues, survivor's guilt, avoidance behaviors, isolation, intrusive memories, anxiety, panic attacks, exaggerated startle response, hyper vigilance, depressive mood, memory and concentration difficulties, and passive suicidal ideation with no intent or plan. The symptomatology more nearly approximates occupational and social impairment with deficiencies in most areas, the criteria for a 70 percent rating. Although the medical evidence does not show symptomatology such as 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, and spatial disorientation, the symptoms noted in the rating schedule are not intended to constitute an exhaustive list, but rather are designed to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Id. Thus, even though not all the listed symptoms compatible with a 70 percent rating are shown, the Board concludes that the type and degrees of symptomatology contemplated for a 70 percent rating appear to be demonstrated since the October 26, 2010 effective date of the grant of service connection. Likewise, the Board also notes that the GAF scores of 40 - 41 assigned by F. S. Judkins and 49 assigned in the January 2012 VA examination are supportive of the assignment of a 70 percent disability rating. According to DSM-IV, GAF scores ranging from 41 to 50 are indicative of 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). In this regard, the Veteran has indicated that he has had passive suicidal ideations, avoidance behaviors, irritability, and serious anger issues. While the assignment of a GAF score of 60 in the February 2011 VA examination would suggest that a lower rating was warranted, the descriptions of the Veteran's symptomatology are the most accurate guide to identifying the severity of the psychiatric condition, and such narrative certainly trumps an examiner's one-time snapshot at the moment of an examination through the GAF score. 38 C.F.R. § 4.126(a). However, the Board emphasizes that the symptoms associated with the Veteran's PTSD do not meet the criteria for the maximum 100 percent, rating at any time. A 100 percent rating requires total occupational and social impairment due to certain symptoms. The Board finds that neither the delineated symptoms nor comparable symptoms are shown to be characteristic of the Veteran's PTSD. The evidence of record does not indicate that the Veteran exhibited persistent delusions; grossly inappropriate behavior; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The Veteran maintained a relationship with his wife. He may have difficulties maintaining work, but the record does not show that he has total occupational impairment. In addition, the Veteran had not been found to have any memory loss for names of close relatives, his own occupation, or his own name. Collectively, the Board finds that the psychiatric symptoms shown do not support the assignment of a 100 percent rating at any time since the October 26, 2010 effective date of the grant of service connection. Accordingly, the Board finds that the criteria for an initial 70 percent rating, but not for a higher rating for PTSD, are met since service connection was established. Thus, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 70 percent. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1Vet. App. 49 (1990). ORDER An initial 70 percent disability rating, but not higher, for PTSD is granted from October 26, 2010, the effective date of service connection to September 20, 2016, subject to the laws and regulations governing the award of monetary benefits. REMAND In its July 2016 remand, the Board instructed the RO to satisfy all notification and development action required for the claim for TDIU and to readjudicate the claim. The record shows that the RO did not attempt to satisfy any notification or development action required for the TDIU claim, which was also not readjudicated. Hence, another remand is required. See Stegall v. West, 11 Vet. App. 268, 270 (1998); see also 38 C.F.R. § 19.31 (2017). Accordingly, the case is REMANDED for the following actions: 1. Ensure that all notification and development action required is fully complied with and satisfied with respect to the issue of entitlement to TDIU, to include sending the Veteran a letter explaining what evidence is the Veteran's responsibility to submit, to specifically include notice of the requirements for establishing TDIU. 2. Obtain a VA medical examination and opinion to determine the impact of the Veteran's service-connected disabilities on the Veteran's ability to maintain gainful employment. The examiner should comment on the functional impairment caused solely by the Veteran's service-connected disabilities (PTSD, residual facial scarring from cystic acne, tinnitus, cystic acne, and right ear hearing loss) relative to his ability to engage in substantially gainful employment. In providing the requested determination, the examiner must consider the degree of interference with ordinary activities, including capacity for employment, caused solely by the Veteran's service-connected disabilities. The VA examiner should describe what types of employment activities would be limited because of the Veteran's service-connected disabilities, what types of employment would not be limited (if any), and whether any limitation on employment is likely to be permanent. The VA examiner must acknowledge and take into account the Veteran's education, training, and work history. Neither age nor nonservice-connected disabilities should be considered or mentioned. A clear rationale for all findings should be provided. 3. After ensuring compliance with the development requested above, readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs