Citation Nr: 1817299 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 12-00 167A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to May 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, CA. A hearing was scheduled for March 8, 2017 and notice of the hearing was provided to the Veteran on January 31, 2017. The Veteran did not attend the scheduled hearing and thus his request is deemed withdrawn. The issue on appeal was previously remanded in July 2017 for further development. FINDINGS OF FACT 1. For the rating period prior to January 4, 2009, the Veteran's PTSD disability symptoms did not result in total occupational impairment. 2. Beginning January 4, 2009, the Veteran's PTSD was manifested by symptoms resulting in both total occupational and social impairment. CONCLUSIONS OF LAW 1. For the rating period prior to January 4, 2009, the criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. For the rating period beginning January 4, 2009, the criteria for a 100 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters In this case, 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). Disability Rating Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2017). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). Here the disability has not significantly changed and a uniform evaluation is warranted. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In this case, the Board considered all the evidence of record, lay and medical, as it bears on the issue of rating. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation). In this case, the Veteran is in receipt of a 70 percent disability rating for PTSD under Diagnostic Code 9411 for the rating period on appeal. Under Diagnostic Code 9411, a 70 percent disability 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 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 inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent disability rating is assigned 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; and memory loss for names of close relatives, or for the veteran's own occupation or name. 38 C.F.R. § 4.130. In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV or DSM 5). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. See Mauerhan, 16 Vet. App. 436. Within the DSM-IV, Global Assessment Functioning (GAF) scale scores ranging from 1 to 100 reflect "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores from 71 to 80 reflect transient symptoms, if present, 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 schoolwork). GAF scores from 61 to 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, with some meaningful interpersonal relationships. GAF scores ranging from 51 to 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 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (depressed patient who avoids friends, neglects family, and is unable to do work). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated "DSM-5." As the Veteran's claim was certified to the Board prior to August 4, 2014, the DSM-5 is not applicable to this case. In reviewing the evidence of record, the Board will consider the assigned GAF score; however, the Board is cognizant that GAF scores are not, in and of themselves, the dispositive element in rating a disability. Rather, GAF scores must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126 (a) (2017). Rating Analysis for PTSD Disability The Veteran contends that his PTSD disability is more severe than what is contemplated by the currently assigned 70 percent disability evaluation for the entire rating period on appeal. Turning to the relevant evidence, in a November 2009 VA psychiatric examination, the examiner indicated that the Veteran was very nervous, emotional, and visibly shaking during the examination. The Veteran described symptoms of angry outbursts, recurrent intrusive thoughts, flashbacks, and nightmares. He also reported that his symptoms were constant and indicated that his symptoms affected his total daily functioning, which resulted in social isolation, blackouts, angry rages, and extreme difficulty at work due to his problems with anger. The Veteran also reported that he had trouble sleeping without medication. After service, the Veteran stated that that he worked as a motion pictures painter for 26 years. He indicated that his relationship with his supervisors and co-workers was fair due to his temper. He also indicated that he was divorced and had no children. Since the development of his psychiatric condition, the Veteran indicated that he was involved in physical altercations and drank regularly. He also had two prior DUIs. The Veteran stated that he had few friends and isolated himself because he felt that his anger would get him into trouble. The Veteran reported currently being self-employed. Upon mental status examination, the November 2009 VA examiner indicated that the Veteran did not maintain any eye contact during the exam. Affect and mood showed a disturbance of motivation and mood, and flattened affect, mood swings ranging from "ok" to rage and anxiety. The Veteran's depressed mood was noted to occur near-continuously and affected the ability to function independently. Panic attacks were present and occurred once per week. There were also signs of suspiciousness. Memory was impaired and the degree was mild. The Veteran did not have suicidal or homicidal ideations. The examiner diagnosed the Veteran with PTSD and assigned a GAF score of 55, indicative of moderate symptoms or moderate difficulty in social, occupational, or school functioning. The evidence also includes a March 2010 letter from Dr. Fik, the Veteran's treating VA psychiatrist. Dr. Fik indicated that, even on medication, the Veteran had chronic anxiety and his GAF scores ranged from 35 to 45, indicative of serious symptoms or some impairment in reality testing or communication, or any serious impairment in social, occupational or school functioning. It was also noted that his PTSD disability had "left him unable to work." Since service, it was noted that the Veteran had lost all interest in team sports, and had stopped going to crowded places, likes parks or beaches. He was noted to be "socially isolated." Dr. Fik further stated that the Veteran was emotionally constricted until his "anger explodes out." Both of the Veteran's ex-wives said they feared his temper and his drinking. The Veteran was noted to have bounced from various jobs-walking away when he became too angry at his bosses. Dr. Fik indicated that the Veteran had two periods of suicidal ideation - once in Vietnam and the 2nd before he went to a mental health clinic. When he was not working, he often left his appearance and hygiene slide. He also had obsessional rituals and his apartment was rigged with "tells" on the windows and doors to let him know if it has been entered. Dr. Fik summarized that the Veteran's PTSD resulted in impaired work, family relations, judgment, mood, panic, and depression. The Veteran also had flashback [spatial disorientation], unprovoked irritability, and difficulty adapting to stressful circumstances. Dr. Fik indicated that the Veteran's disability met the VA criteria for a 70 percent PTSD rating and "Individual Unemployability." The Veteran was afforded a VA examination in June 2010. At that time, the Veteran reported that he stopped working in 2008 because of increasing symptoms of PTSD. This included a severe startle response. He recalled being exposed to the noise of a machine and flinging himself about 30 feet to get to the wall. If he were subjected to a noise behind him, he would leap and sometimes throw an object at the person who made the noise. He indicated that he worked for Disney doing set construction for several years. The Veteran stated that he had been in many other jobs from which he was fired because of conflict with co-workers. He was able to survive at Disney because he would change his workplace frequently going from one show to another. However, his anxiety, depression, startled response, and sleep disturbance combined to make the workplace too difficult for him and he retired about two years ago. The Veteran also stated that he kept knives all around the house and carried a baseball bat on his motorcycle. Upon mental status examination, the Veteran's mood was dysphoric and anxious. The examiner indicated that the Veteran had treatment for PTSD with amelioration of some symptoms. However, he was still obviously disturbed. His almost total body tremor apparently was a function of stressful situations, even though the situations may not actually be stressful. He had phobic behavior in crowds and could not tolerate closed spaces. The examiner also noted that the Veteran had a history of frequent verbal and physical fights, usually with co-workers. At the time of examination, the examiner stated that the Veteran was "unemployable." A GAF score of 50 was assigned, reflective of serious symptoms or any serious impairment in social, occupational or school functioning. Pursuant to the Board's July 2017 remand, the Veteran was scheduled for another VA examination, but failed to report. The evidence also includes the Veteran's formal TDIU application (VA Form 21-8940), which indicates that the Veteran last worked in June 2008. However, an April 2010 correspondence from the Veteran's former employer (Disney) indicates that the Veteran last worked on January 3, 2009. Upon review of the evidence of record, the Board finds that a rating in excess of 70 percent is not warranted for the rating period prior to January 4, 2009. In this regard, prior to January 4, 2009, the Veteran's PTSD did not result in total occupational impairment as required by the 100 percent rating criteria. Although the evidence demonstrates that he may have had some difficulties dealing with co-workers and supervisors due to his anger and anxiety, he was able to maintain full-time employment at Disney. As such, the criteria for a 100 percent disability rating for PTSD (specifically total occupational impairment) have not been met for the period prior to January 4, 2009. Accordingly, a higher rating in excess of 70 percent is not warranted prior to January 4, 2009. Regarding the rating period beginning January 4, 2009, the Board finds that a 100 percent disability rating is more nearly approximated. The evidence provided by both the Veteran's VA psychiatrist and by independent VA examiners indicates that the Veteran was socially isolated. In this regard, the Veteran was found to have lost interest in social activities, had very few friends, and avoided crowded places. Further, the evidence shows that the Veteran was no longer able to work as a result of his PTSD symptoms as of January 2009. See e. g., June 2010 VA examination report (examiner indicated that the Veteran had a history of frequent verbal and physical fights, usually with co-workers. The examiner also indicated that the Veteran was "unemployable" ); see also March 2010 letter from Dr. Fik (recommending that the Veteran be granted a TDIU). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that a 100 percent disability evaluation for PTSD is more nearly approximated for the rating period beginning January 4, 2009. Moreover, the Board has considered whether the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was reasonably raised by the record in this case. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran is already in receipt of a TDIU beginning January 4, 2009, based on this decision. As for the period prior to January 4, 2009 (and as discussed above), the evidence shows that the Veteran was employed. Therefore, the issue of a TDIU for the period prior to January 4, 2009, is not reasonably raised by the record and is not part of the rating appeal. The Board also finds no basis in the record upon which to establish entitlement to special monthly compensation under 38 U.S.C. § 1114. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Although the Veteran is now receipt of a 100 percent schedular rating for PTSD beginning January 4, 2009, he does not have additional service-connected disability or disabilities independently ratable at 60 percent and he has not specifically contended otherwise. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i) (2017). Buie v. Shinseki, 24 Vet. App. 242 (2011). ORDER For the rating period prior to January 4, 2009, a rating in excess of 70 percent for PTSD is denied. For the rating period beginning January 4, 2009, a 100 percent rating for PTSD is granted. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs