Citation Nr: 1809035 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 09-38 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Kenneth M. Ciardiello, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to July 1971, with service in the Republic of Vietnam. This appeal comes to the Board of Veterans' Appeal (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In January 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). This issue was previously before the Board in June 2015, when it was remanded to provide the Veteran with a hearing. FINDINGS OF FACT 1. The Veteran's PTSD is manifested by occupational and social impairment, with deficiencies in most areas. 2. The most probative evidence of record demonstrates that the Veteran's service-connected PTSD alone precludes him from securing or following a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent for PTSD are met. 38 U.S.C. §§ 1155, 5107(b): 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU have been met throughout the period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.400, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS PTSD The Veteran's PTSD is rated as 30 percent disabling. He contends that his PTSD is more severe than the currently assigned rating and that he is entitled to a higher initial rating. Following a review of the relevant evidence of record, the Board finds that the preponderance of the evidence shows that the Veteran's PTSD warrants a disability rating of 70 percent throughout the appeal period. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. See 38 U.S.C.A. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). Where there is a question as to which of two evaluations shall 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. See 38 C.F.R. § 4.7 (2017). Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's PTSD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9400 (2017). Under the General Rating Formula for Mental Disorders, a 30 percent rating is warranted for 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, and mild memory loss (such as forgetting names, directions, recent events). 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 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; 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 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 worklike setting); inability to establish and 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, DC 9411 (2017). The symptoms listed in General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather 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, 443 (2002). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a Veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. In addition, in Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the Court indicated that the Board must consider the severity, frequency, and duration of the signs and symptoms of a mental disorder when determining the appropriate rating. Further, the Court held that the presence of suicidal ideation alone might cause occupational and social impairment with deficiencies in most areas. Id. The Global Assessment of Functioning (GAF) is a scale reflecting psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF score between 31 and 40 indicates some impairment in reality testing or communication or major impairment in several areas. A GAF score of 41 to 50 is defined as denoting serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51 to 60 is defined as indicating 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). A score of 61 to 70 is defined as indicating some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning but generally functioning pretty well, and has some meaningful interpersonal relationships. See Carpenter v. Brown, 8 Vet. App. 240, 242-244 (1995). Turning to the evidence of record, the Veteran was afforded a VA examination in connection with this claim in December 2013. The examiner confirmed a diagnosis of PTSD, and reported symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbances in mood and motivation. During the examination, the Veteran also endorsed hypervigilance, exaggerated startled response, sleep disturbances and angry outbursts. The Veteran denied auditory and visual hallucinations. See December 2013 VA Examination. The Veteran was afforded another VA examination in April 2015. The examiner again confirmed a diagnosis of PTSD, and opined that the Veteran experiences occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, as a result of his PTSD. The examiner further stated that the Veteran's PTSD significantly impairs his ability to work. The Veteran reported difficulty sleeping, and expressed that he has frequent flashbacks and nightmares that make it difficult for him to sleep through the night. He also reported panic attacks that remind him of Vietnam. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, disturbances in mood and motivation, difficulty establishing and maintaining effective work and social relationships, suicidal ideation, and neglect of personal appearance and hygiene. See December 2013 VA Examination. During the Veteran's January 2018 hearing, he reiterated that he has current suicidal ideations. See January 2018 Hearing Transcript at 3. He also stated that his PTSD symptoms, including suicidal ideation, have been constant since about 2005. Id. at 4. Following a review of the relevant evidence of record, the Board finds that the criteria for a rating of 70 percent have been met throughout the appeal period due to endorsed symptoms of suicidal ideation and neglect of personal appearance and hygiene, in addition to the April 2015 examiner's opinion that the Veteran's PTSD is manifested by occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The evidence or record does not establish that a higher rating is warranted. Specifically, there is no evidence that the Veteran's PTSD is manifested by total occupational and social impairment. In fact, the Veteran has reported a good relationship with his wife, and that he also has relationships with his children and siblings. Thus, the Board finds that the Veteran's PTSD is not manifested by total social impairment, and consequently does not warrant a rating in excess of 70 percent. The Veteran testified that his PTSD symptoms have been of constant severity throughout the appeal period. Therefore, staged ratings are not appropriate. TDIU The Veteran asserts that he is unable to secure or follow a substantially gainful occupation due to his service-connected PTSD. When evidence of unemployability is submitted during the appeal from an assigned disability rating, a claim for TDIU benefits will be considered part of the claim for benefits for the underlying disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If the appropriate rating under the pertinent diagnostic code of the rating schedule is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). According to the applicable laws and regulations, a total rating for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purposes of determining whether or not there is one 60 percent disability or one 40 percent disability, disabilities that affect a single body system, e.g. orthopedic, digestive, respiratory, will be considered as one disability. 38 C.F.R. Part 3, §§ 3.340, 4.16(a). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). As the Veteran has been granted a 70 percent rating for PTSD throughout the period on appeal, pursuant to this decision, the Veteran meets the schedular criteria for a TDIU. The Veteran has competently and credibly testified that his ability to work was negatively impacted by his PTSD. Specifically, he reported that his constant stress and suicidal ideation forced him to stop working his job as a mechanical planner. See January 2018 Hearing Transcript at 11. Additionally, the April 2015 examiner found that the Veteran's ability to obtain and maintain gainful employment is significantly impaired by his PTSD. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C § 5107; 38 C.F.R. § 3.102), that the Veteran's PTSD alone has rendered him unable to maintain employment. As the Veteran's symptoms have been constant throughout the period on appeal, the TDIU is effective for the entire period on appeal. ORDER For the entire appeal period, a rating of 70 percent for PTSD is granted, subject to the law and regulations governing payment of monetary benefits. For the entire appeal period, entitlement to a total rating based on individual unemployability due to service-connected PTSD, is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs