Citation Nr: 1817320 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 08-38 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: George T. Sink, Attorney ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1968 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2008 and January 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. These issues were previously remanded by the Board in December 2014 and July 2012 for additional development. Specifically, the December 2014 remand required consideration of newly obtained evidence by the Agency of Original Jurisdiction (AOJ). The AOJ has reviewed all the pertinent evidence in this case. Accordingly, the Board finds that the remand directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). 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). FINDINGS OF FACT 1. The Veteran's PTSD has not resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; and has not resulted in total occupational and social impairment. 2. The Veteran's service-connected disabilities have not rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent disabling for PTSD have not all been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for entitlement to a TDIU have not all been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. PTSD Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's PTSD is currently evaluated as 50 percent disabling. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 50 percent evaluation is warranted where there is 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is 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); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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, own occupation, or own name. Id. Symptoms listed in the VA's general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words "such as" that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held "that 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." Id. at 117. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. The nomenclature employed in the rating formula is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). See 38 C.F.R. § 4.130. For purposes of considering the evidence in connection with the Veteran's adjustment disorder, the Board notes that the Global Assessment of Functioning (GAF) scale is a scale from 0 to 100, reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) (DSM-IV) (100 representing superior functioning in a wide range of activities and no psychiatric symptoms). See also 38 C.F.R. §§ 4.125, 4.126, 4.130. In this regard, the Board acknowledges that 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, and examinations conducted pursuant to the DSM-5 do not include GAF scores. The Veteran's case was certified to the Board before August 4, 2014. The Board will therefore consider these GAF scores in adjudicating the claim. A GAF score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. A GAF of 41-50 denotes serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning. A GAF of 51-60 denotes moderate symptoms (e.g. flat affect, circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). A GAF of 61-70 denotes 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, has some meaningful interpersonal relationships. Per applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, not solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126(b). The Veteran's PTSD does not cause occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. As such, the Veteran's PTSD does not approximate the criteria for a rating in excess of 50 percent. The Veteran was afforded a VA examination in March 2008. The Veteran reported symptoms of difficulty sleeping due to nightly nightmares, intrusive thoughts 1 to 2 times a week, and hypervigilance. The Veteran reported that he lived with his girlfriend and worked at a textile mill. He indicated some difficulty with attendance due to depression and anxiety, but stated that he gets along well with his coworkers. The mental status examination indicated the Veteran was logical and goal directed with no disorder in thought process and no suicidal ideation. The Veteran was assessed with a GAF score of 58. The examiner stated that the Veteran had a moderate degree of impairment in social functioning, with minimal-to-mild impairment in occupational functioning, and an overall mild level of disability. The Veteran was afforded another VA examination in October 2009. He continued to endorse symptoms of difficulty sleeping, nightmares, flashbacks, problems with anger and irritability, hypervigilance, and difficulty with crowds and loud noises. The Veteran reported difficulty with relationships and noted that he had retired from his job. He reported increased tension with his supervisor after a temporary layoff, and that he decided to retire rather than getting fired and to avoid an argument with his supervisor. The Veteran reported that he tends to isolate himself, but his hobbies include fishing, he walks 4 to 5 times a week, does some yard work, and plays basketball with his cousin. The mental status exam indicated the Veteran was oriented with no overt symptoms of psychosis, and no suicidal or homicidal ideation. The Veteran was assessed with a GAF score of 58. The examiner stated that the Veteran had a mild-to-moderate impairment in both social and occupational functioning. The Veteran attended an additional VA examination in August 2012. The Veteran reported symptoms of depressed mood, anxiety, panic attacks, nervousness around crowds, mild memory loss, flattened affect, and difficulty adapting to stressful circumstances. He was assessed with a GAF score of 50. The examiner found the Veteran has occupational and social impairment with reduced reliability and productivity. The examiner additionally stated that the Veteran's symptoms result in decreased productivity and functioning in the workplace, rendering him unable to secure and maintain competitive employment. The Veteran attended another VA examination in July 2013. He reported symptoms of chronic sleep impairment, disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner found the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although general functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran again attended a VA examination in September 2017. He reported the same symptoms as those noted above, and his mental status examination showed no evidence of hallucinations or suicidal ideation. The Veteran reported that he lives with his wife, has three children, and described these relationships as good. The Veteran also reported being close to his sister, having one close friend and several casual friends, exercising several days a week, and reported recreational activities such as shooting pool and fishing. The examiner found the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks, although general functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner also stated that the Veteran's moderate impairment does not render him unable to maintain substantially gainful activity. The examiner stated the Veteran would perform best in a job with a limited number of interruptions and few competing job demands. The Veteran has had mental health treatment at Dorn Veteran's Hospital throughout the period on appeal. These treatment records endorse consistent reports of difficulty sleeping, flashbacks, and hypervigilance, consistent with the symptoms reported on the VA examination. The treatment records also show the Veteran consistently denies hallucination, suicidal ideation, and mental status exams show normal thought process and good insight and judgement. The Board finds the March 2008, October 2009, July 2013, and September 2017 VA examinations the most probative evidence of record because, collectively, they are more reflective of the Veteran's psychiatric symptoms and how these symptoms affect his social and occupational functioning. The Board finds the 2012 VA examination report less probative as it is not supported by the collective evidence of record. The Board notes that the examiner found the Veteran had occupational and social impairment with reduced reliability, which is consistent with the 50 percent disability rating. However, the Board finds the examiner's opinion that the Veteran was unable to secure and maintain competitive employment is outweighed by the four other VA examinations and the Veteran's treating records. This is discussed in more detail below, as it is related to the Veteran's claim for entitlement to a TDIU. After a thorough review of the evidence, it appears that although the symptoms associated with the Veteran's service-connected psychiatric disabilities have fluctuated in severity to some degree through the appeal period, they most closely approximate the type of symptoms described in the criteria for the 50 percent disability rating for the entire appeal period. The Veteran has exhibited occupational and social impairment with reduced reliability and productivity as a result of symptoms such as nightmares, difficulty sleeping, hypervigilance, and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. While the Veteran has presented with some of the symptoms described in the criteria for a 70 percent rating, namely difficulty adapting to stressful circumstances, this has not caused occupational and social impairment with deficiencies in most area, such as work, school, family relations, judgment, thinking, or mood. The Board does not consider only the psychiatric symptoms a Veteran experiences, but how those symptoms impact his occupational and social impairment. Vazquez-Claudio, 713 F.3d at 118; Mauerhan, 16 Vet. App. at 442. As such, the mere presence of certain symptoms alone does not mandate a higher rating. As noted above, although the Veteran has reported some difficulty with relationships, he currently lives with his wife and reported a good relationship with his children. The Veteran has friends outside of family and reported hobbies such as fishing. The Veteran's treating records consistently show fair-to-good judgment and thinking. Therefore, the record does not show the occupational and social impairment required for a 70 percent schedular rating. The record does not indicate that the Veteran has exhibited any of the symptoms described in the criteria for a 100 percent disability rating. The Board acknowledges that this list of symptoms is not exhaustive, however, the Veteran's reported symptoms have not caused total occupational and social impairment, which is required for a 100 percent evaluating. As noted above, the Veteran is married, has friends, reports going to church, and has hobbies, such as fishing. Therefore, the record does not show total occupational and social impairment, as required for the 100 percent schedular rating. The Board acknowledges the Veteran's contention that the September 2017 VA examination was inadequate because it only lasted 15 minutes and the Veteran was not given the chance to talk about what he had been going through on a daily basis. The Veteran provided the Board with a description of his symptoms including flashbacks, hypervigilance, difficulty sleeping, concentrating, and being around others. The Board notes the September 2017 VA examiner identified these symptoms on the examination report, and the report appears to be accurate portrayal of the Veteran's symptoms. The Board has considered all the Veteran's reported symptoms and finds that the 50 percent disabling criteria compensates the Veteran for his reported symptoms, as discussed above. Based on the above evidence, the preponderance of evidence is against the assignment of a rating in excess of 50 percent disabling at any point during the appeal period. There is no reasonable doubt to be resolved as to these issues. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. II. TDIU A claim for a TDIU is a potential part of an initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. TDIU may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) 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. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Furthermore, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the veteran is unemployable due to service connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Neither non-service-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's nonservice-connected disabilities on his ability to function. For the period of February 21, 2008 through November 2, 2014, the Veteran's only service-connected impairment was PTSD, evaluated as 50 percent disabling. Therefore, the Veteran did not meet the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(a) for this time period. With regard to whether the Veteran is entitled to TDIU pursuant to 38 C.F.R. § 4.16(b), the Board has no authority to award TDIU under § 4.16(b) in the first instance. Rather, the rating board must submit to the Director of Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). If the Director denies the extraschedular TDIU, the Board has jurisdiction to grant or deny the appeal, or remand for additional development and the Director's decision is the same as the RO's as far as the Board's jurisdiction and standard of review. Wages v. McDonald, 27 Vet. App. 233, 238 (2015) ("In short, the Director's decision is no different than an RO's decision in terms of its effect on the Board's statutory jurisdiction and the Board's standard of review"). The preponderance of the evidence is against a finding that the Veteran's service-connected disability precludes him from participating in all forms of regular substantially gainful employment; therefore referral for extraschedular consideration is not warranted. The Veteran stated on his application for increased compensation based on unemployability the he last worked for DuPont/Invista as a machine operator, but became too disabled to work as of September 2008 because of his PTSD symptoms and prostate cancer. The Board notes the during this period, his only service-connected disability was PTSD. The Veteran stated that his PTSD prevented him from getting along with and working with other people due to anger issues. At the March 2008 VA examination, the Veteran reported that he worked at a textile mill where he has been working for 33 years. The Veteran reported some difficulty with attendance due to anxiety and depression, but stated that the got along well with his co-workers. At the October 2009 VA examination, the Veteran reported he retired from his job in October 2008 after problems with his supervisor. The Veteran reported he took time off at his job due to problems with his girlfriend, and his supervisor was unprofessional and had problems with his use of leave. The Veteran reported some feelings of paranoia at the job, but reported he got along with his coworkers. At the 2012 VA examination, the Veteran reported he was laid off and thought it was because of his inability to get along with his supervisors and coworkers. The Veteran reported to the September 2017 examiner that he took early retirement due to conflict with his supervisor. The Veteran told the examiner that he missed some days due to mental health issues and had some problems with concentration that had a minimal impact on his job functioning. He denied being written up on the job the last year he worked. Based on the evidence of record, the Board does not find that the Veteran's service-connected PTSD precludes his ability to obtain or maintain substantially gainful employment. In this regard, the Board finds that the Veteran has provided contradictory accounts as to whether he retired or was let go from his last place of employment, and what his relationship with his supervisors and coworkers was like when he was employed there. In light of these inconsistent accounts the Board cannot assign any significant probative value to his reports of leaving his job due to PTSD symptoms The Board acknowledges the July 2012 VA examiners opinion that Veteran's impairment rendered him unable to secure and maintain competitive employment, however finds it outweighed by the other evidence of record. As noted above, the 2017 VA examiner found the Veteran's PTSD does not render his unable to secure and maintain substantially gainful employment. The March 2008 examiner found only minimal-to-mild impairment in social functioning, and the 2009 examiner found mild-to-moderate impairment in occupational functioning. The Veteran's treating records regularly indicate logical or linear thought process, and fair-to-good insight and judgment. The fact that the Veteran's PTSD symptoms may cause him to experience certain occupational impairments, to include anger, difficulty concentrating, and difficulty interacting with others, while carrying out his occupational duties, does not mean that he is entirely incapable of employment - but rather that he might have some adjustment difficulties in adapting to a work environment. The assigned schedular ratings compensate for the symptomatology associated with his PTSD, to include anger and difficulty interacting with others. Given the evidence does not show impairment due to service-connected disability which would preclude employment with limited interruptions and reduced contact with others, the Board concludes that referral of this matter for extraschedular consideration is not indicated. The preponderance of the evidence is against this claim for entitlement to TDIU. Therefore, there is no reasonable doubt to be resolved. The appeal for this matter must be denied. 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3. For the period beginning November 3, 2014, the Veteran was service-connected for prostate cancer, rated as 100 percent disabling, and was also rated 50 percent disabling for his service-connected PTSD. Though the Veteran has been evaluated at 100 percent disabling for the period beginning November 3, 2014, the matter of TDIU is not moot because a TDIU based on a single service-connected disability, when the Veteran also has an additional service connected disability independently ratable at 60 percent, may result in additional benefits, such as special monthly compensation (SMC), even if a 100 percent combined schedular evaluation is in effect. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, the issue is whether the Veteran is entitled to a TDIU rating for PTSD alone. If the Veteran were entitled to a TDIU rating for PTSD alone, he would also qualify for SMC because he has an additional disability rated at 100 percent. However, as discussed in detail above, the preponderance of evidence is against entitlement to a TDIU for PTSD alone. The most probative evidence of record since November 2014 as to whether he is unemployable due to his PTSD is the September 2017 medical opinion. That opinion is evidence against a finding that his PTSD alone renders him unemployable. For these reasons, the Board concludes that the appeal as to this matter must be denied. There is no reasonable doubt to be resolved in this regard. 38 U.S.C. § 5107(b), 38 C.F.R. §§ 3.102, 4.3. ORDER Entitlement to a rating in excess of 50 percent disabling for PTSD is denied. Entitlement to a TDIU is denied. ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs