Citation Nr: 1808549 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 12-24 023A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) before December 31, 2014. 2. Entitlement to a schedular total disability rating based upon individual unemployability due to service-connected disability (TDIU) as of November 1, 2008. REPRESENTATION Appellant represented by: Daniel Smith, Attorney ATTORNEY FOR THE BOARD K. McDonald, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1964 to December 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana which increased the Veteran's disability rating for PTSD to 30 percent from the date of his original service connection claim. The Veteran then sought a higher rating. In December 2013, the Board denied a rating in excess of 30 percent for PTSD. The Veteran appealed to the Court of Appeals for Veterans Claims (Court), and a Joint Motion for Remand (JMR) was issued in September 2014. The Board of Veterans' Appeals then granted a 50 percent rating for PTSD and remanded the claim of entitlement to TDIU in March 2015. An additional JMR was issued by the Court in March 2016. Subsequently, in November 2016 the Board granted a 70 percent rating for PTSD as of December 31, 2014, and denied a rating in excess of 50 percent prior to that date. Another JMR was issued in August 2017, and the case is again before the Board for further consideration. The Board acknowledges that the matter of entitlement to TDIU was previously subject to remand by the Board in March 2015. However, as of this date, the Agency of Original Jurisdiction (AOJ) has yet to reach a determination in this matter. The Court has held that when evidence of unemployability is submitted at the same time that a Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the TDIU issue remains jurisdictionally before the Board as part and parcel of the present increased rating claim, despite any absence of adjudication at the lower level. On this basis, the Board finds it necessary to again remand this matter for adjudication by the AOJ. The Board also notes that at the time of the prior remand in March 2015, the Veteran had not reached the schedular rating threshold for TDIU under 38 C.F.R. § 4.16 (2014). Consideration on an extra-schedular basis was instructed. However, based upon the increased rating for PTSD granted herein, the Veteran now meets the schedular threshold for consideration of TDIU as he has two service-connected disabilities, with at least one rated at 40 percent or higher, and a combined rating of 70 percent or more throughout the appellate period. 38 C.F.R. § 4.16. As such, the Veteran is entitled to due consideration of his TDIU claim by the AOJ. The Board also notes that the grant of a 70 percent rating for PTSD back to the original date of service connection constitutes a full grant of that issue on appeal in this case. Specifically, in October 2010, the Veteran's attorney explicitly limited the scope of the present appeal stating "This appeal would be satisfied with a finding of an initial entitlement to 70% for the veteran's PTSD, with an Effective Date of December 21, 2006." Notice of Disagreement, October 2010. A subsequent brief from the Veteran's attorney in August 2016 confirmed that the Veteran seeks an initial 70 percent disability rating for PTSD, plus a TDIU rating effective as of November 1, 2008, the day after his last day of work. While the TDIU rating remains on remand for separate adjudication by the AOJ, the Board herein grants the full benefit sought with respect to the initial rating of the Veteran's PTSD alone, thus there remains no matter left in case or controversy with regard to that initial rating. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is again REMANDED to the AOJ. FINDING OF FACT Prior to December 31, 2014, the Veteran's PTSD was primarily manifested by occupational and social impairment in many areas due to symptoms consistent with very frequent anxiety, depression, and panic attacks, severe daily irritability and impaired impulse control, and difficulty in adapting to stressful circumstances. CONCLUSION OF LAW The criteria for a rating of 70 percent for PTSD are met prior to December 31, 2014. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and its implementing regulations describe, in part, VA's legal duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). This appeal has been considered with respect to VA's duties to notify and assist. Given the favorable outcome herein - a full grant of the benefit sought - no further explanation of how VA has fulfilled the duties to notify and assist is currently necessary. Increased Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A proper rating of a Veteran's disability contemplates its history, and must be considered from the point of view of a Veteran working or seeking work. 38 C.F.R. §§ 4.1, 4.2. In determining the appropriate evaluation in a given case, many different statutes, regulations, and case law applicable to VA govern. When after careful consideration of all available data, a reasonable doubt arises regarding the degree of disability, such doubt must be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation 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. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the Veteran seeks a rating in excess of 50 percent for his service-connected PTSD prior to December 31, 2014 at which time the disability was evaluated as 70 percent disabling. As discussed above, the Veteran seeks only a 70 percent rating, and no higher, with the exception of the matter of TDIU which will be separately considered based upon the remand below. Furthermore, the only rating available in the General Rating Formula for Mental Disorders that is greater than the 50 percent currently established and the limited 70 percent sought, is the 70 percent rating. 38 C.F.R. § 4.130. Thus, the Board's current analysis is limited to the question of whether or not this Veteran's PTSD symptomatology is consistent with the extent of social and occupational impairment that is contemplated by the schedular criteria for a 70 percent rating. 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); inability to establish and maintain effective relationships. Id. Use of the term "such as" in the criteria for a rating under § 4.130 indicates that the list of symptoms that follows is "non-exhaustive," meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a given rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see also Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because all nonzero disability levels in the General Rating Formula for Mental Disorders are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that a veteran's impairment must be due to those symptoms, "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio, 713 F.3d at 116-17. In other words, when evaluating a mental disorder, consideration shall be given to the frequency, severity, and duration of all psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during any periods of remission. The evaluation will be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. It is the responsibility of any reviewing authority to interpret examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.2, 4.126. Additionally, effective August 4, 2014, VA amended the portion of the Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replace them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). The provisions of this rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction (AOJ) on or after August 4, 2014. This appeal was pending before VA prior to August 4, 2014, and therefore, the DSM-IV remains applicable. To this end, it is worth noting that the DSM-IV included an evaluation mechanism called the Global Assessment of Functioning scale, or GAF score. This scale reflected psychological, social and occupational functioning on a hypothetical continuum of mental illness where higher numbers reflected greater functionality and lower numbers reflected more severe symptomatology. See Richard v. Brown, 9 Vet. App. 266, 267 (1996)(citing DSM-IV). Generally speaking, GAF scores ranging between 61 to 70 reflect 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 indicate that the individual is functioning pretty well, and has some meaningful interpersonal relationships. Scores from 51 to 60 are 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 co-workers). GAF scores from 41 to 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). Scores from 31 to 40 indicate some impairment in reality testing or communication (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). The Diagnostic and Statistical Manual of Mental Disorders (Am. Psychiatric Ass'n 4th ed.) (1994). However, under the DSM-5, the GAF score has been discontinued for several reasons, including its conceptual lack of clarity (i.e., potentially conflating presence of symptoms with severity of those symptoms, and including multiple categories including symptoms, suicide risk assessments, and disabilities in its descriptors) and generally presenting questionable psychometrics in routine practice. In reviewing the relevant evidence of record, the Board must continue to consider the assigned GAF score where reported by medical professionals; however, the Board is cognizant that GAF scores are not dispositive in rating a disability. Rather, GAF scores must be considered in light of the actual symptoms of a Veteran's given disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). At the time of the initial claim of service connection in this case, the Veteran espoused experiencing a history of problems with irritability and anxiety, as well as some difficulty sleeping since service. PTSD self-report questionnaire, December 2006. The Veteran was then afforded a VA examination for PTSD in March 2008. The Veteran has, however, asserted that this examination is inadequate for rating purposes as the examination lasted only thirty minutes, the examiner was interrupted by telephone calls three times during that duration, and she recorded some of the Veteran's responses incorrectly according to his testimony. See Notice of Disagreement, July 2008. The Board does not find that the limited length or duration of a VA examination is dispositive on its own, so long as the report provides sufficient detail to accurately reflect the elements of disability present. 38 C.F.R. § 4.2. However, as the accuracy of the responses recorded during the examination report itself is called into question, the Board will set the report aside and rely instead on the Veteran's own credible testimony of his observable symptoms for the period in question. In conjunction with the July 2008 Notice of Disagreement, the Veteran submitted a statement that he experienced panic attacks, particularly in confined or crowded places, had some suicidal thoughts, and experienced episodes of violence during stressful times. The Veteran also expressed that he had lost jobs and ended marital relationships due to his PTSD symptoms. An additional self-assessment questionnaire (Penn Inventory) was submitted in September 2009. At that time, among other symptoms, the Veteran espoused feeling jumpy or uptight, being often afraid to show anger as it might turn to violence, re-experiencing flashbacks to traumatic events, being easily distracted and unable to concentrate, and having negative memories that intrude on his mind without warning. Also in September 2009, a psychologist, Dr. JM, provided an opinion letter based upon a two hour diagnostic interview with the Veteran. The private psychologist noted the Veteran's mood was somewhat dysphoric and his affect was appropriate to the content of what he said during the interview. The Veteran presented as rather relaxed, except when he was recalling details related to his military stressors. The Veteran reported experiencing intrusive recollections and flashbacks, hypervigilance, prior suicidal ideation, depression, and poor sleep. This examiner assigned a GAF score of 51. Private assessment, September 2009. A subsequent March 2010 VA examination described symptoms of near constant anxiety, at times severe, and moderate to severe depression lasting several days at a time, as well as moderate to severe panic attacks as often as twice per week. A prior suicide attempt in the 1970s was described, although the Veteran had no current thoughts or intent regarding suicide at the time of examination. The Veteran was able to maintain hygiene and other basic activities of daily living, was oriented to person, place and time, and was not found to have memory loss or impairment, or obsessive or ritualistic behavior that interfered with routine activities. His rate and flow of speech was normal. This examiner assigned a GAF score of 65. VA contract examination, March 2010. On December 31, 2014, Dr. JM re-interviewed the Veteran. At this time, the Veteran was described as noticeably guarded, giving the "distinct impression that he was holding back with respect to how difficult PTSD and depression had made his life." Private assessment, December 2014. The examiner stated that his wife's descriptions also "left no doubt as to his profound, abiding, and easily aroused anger." Id. His mood was anxious and depressed. His affect was blunted and dour. His reality testing was good, and flow of thought was good and uninterrupted. The Veteran reported experiencing recurrent, involuntary and intrusive memories, as well as traumatic nightmares. Symptoms remained generally consistent with the degree of severity described in the earlier September 2009 interview with the Veteran. This examiner stated that if he were using the DSM-IV criteria at this time, he would assign a GAF score of 51. Private assessment, December 2014. This too is consistent with the same psychologist's prior finding in September 2009. Also, a January 2015 private vocational evaluation determined that the Veteran's prior work environment did not present the same type of environment as would be expected in other competitive employment, but rather presented a somewhat protected environment where the Veteran was known to have an anger problem, but his supervisor allowed the Veteran to keep to himself and the supervisor would intercede when conflicts arose. In the self-professed vocational expert's opinion, the Veteran presented a picture of occupational impairment, certainly with work area deficiencies. Private vocational opinion, January 2015. Overall, in light of the general consistencies between assessments by the same provider in 2009 and in 2014, the Board finds that the Veteran's total disability picture is consistent with a 70 percent rating for PTSD prior to December 31, 2014 at which the current 70 percent rating was established. Specifically, the Veteran is shown to have significant occupational and social impairment with deficiencies at least in areas of work, family relations, and mood. He experienced symptoms consistent with very frequent panic and depression affecting his ability to function independently, appropriate and effectively, as well as impaired impulse control, and difficulty in adapting to stressful circumstances. The Board finds the Veteran's disability picture to most nearly approximate the criteria established at the 70 percent level in the General Rating Formula for Mental Disorders, and no higher. 38 C.F.R. § 4.130. ORDER Prior to December 31, 2014, a 70 percent disability rating for PTSD, but no higher, is granted. REMAND As described above, the matter of entitlement to TDIU was previously remanded by the Board in March 2015, but remains unadjudicated by the AOJ as of the date of this decision. Furthermore, at the time of the prior remand, the Veteran was not eligible for a schedular TDIU based on the rating of his disabilities at that time. Now, due to the grant of a 70 percent rating for PTSD throughout the appellate period, the matter of entitlement to TDIU has also changed from one of extraschedular consideration to schedular consideration. 38 C.F.R. § 4.16. For these reasons, the Board finds it imperative to again remand the matter for consideration by the AOJ. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any recent VA treatment records not currently associated with the claims file. 2. Undertake any other development deemed warranted. Then adjudicate the Veteran's claim of entitlement to TDIU, to include consideration of any additional evidence obtained. If a benefit sought on appeal is not granted to the Veteran's satisfaction, provide the Veteran and his representative with a Supplemental Statement of the Case, then return the appeal 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs