Citation Nr: 1820237 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 02-06 129 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent prior to July 14, 2010 and in excess of 70 percent thereafter, for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). (The issue of entitlement to service connection for lung cancer, to include as due to herbicide exposure is addressed in a separate decision.) REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to October 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In a March 2002 rating decision, the RO denied entitlement to service connection for PTSD. The Veteran perfected an appeal on this issue. In a May 2007 decision, the Board denied service connection for PTSD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which, in a September 2008 order, granted a Joint Motion for Remand, vacating the Board's May 2007 decision that denied service connection for PTSD, and remanded the case for compliance with the terms of the Joint Motion. In February 2009, the Board remanded the case to VA in compliance with the Court's order and again remanded the claim for service connection for PTSD in April 2010 for additional development. By a May 2013 rating decision, the RO awarded service connection for PTSD and assigned an initial 50 percent disability rating and also assigned a 70 percent disability rating effective July 14, 2010. The Veteran disagreed with the disability ratings assigned and perfected an appeal on this matter. The TDIU claim has been raised during the pendency of this appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the claim for entitlement to a TDIU is part and parcel of the increased rating claim for PTSD, arising from the claim filed in September 2000. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Throughout the duration of the appeal, the probative evidence of record indicates the Veteran's PTSD is productive of occupational and social impairment with deficiencies in most areas, including work, judgment, thinking and mood. CONCLUSIONS OF LAW 1. For the period prior to July 14, 2010, the criteria for an initial disability rating of 70 percent, but no higher, for PTSD are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2017). 2. For the period from July 14, 2010, the criteria for an initial disability rating in excess of 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, DC 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist The Veteran was provided notice letters pursuant to the Veterans Claims Assistance Act (VCAA) in March 2001, August 2005 and October 2009. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. All relevant evidence necessary for an equitable resolution of the issues on appeal has been identified and obtained, to the extent possible. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claims in this Board decision. There is no indication there exists any additional evidence that has a bearing on this case that has not been obtained and that is obtainable. The Veteran has been accorded ample opportunity to present evidence and argument in support of this appeal. See 38 C.F.R. § 3.103. Analysis 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 resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different "staged" ratings may be warranted for different time periods. Where the question for consideration is the propriety of the initial evaluation assigned after the granting of service connection, separate ratings may also be assigned for separate periods of time based on facts found, i.e. "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran's PTSD has been assigned an initial 50 percent disability rating prior to July 14, 2010 and an initial 70 percent disability rating from July 14, 2010 under 38 C.F.R. § 4.130, DC 9411, which is evaluated under the general rating formula for mental disorders. Under this general rating formula, a 50 percent rating is warranted when 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 (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. 38 C.F.R. § 4.130. A 70 percent rating is warranted when 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when there is 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. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to 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, 442 (2002). One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266 (1996); Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). See also Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-IV). While the Rating Schedule does indicate that the rating agency must be familiar with the DSM IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. Accordingly, GAF scores are but one factor to be considered in conjunction with all the other evidence of record. The Board notes that the DSM-IV has been recently updated with a Fifth Edition (DSM-V). Effective August 4, 2014, VA issued an interim rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to refer to certain mental disorders in accordance with DSM-V. The provisions of the interim final rule only apply, however, to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after August 4, 2014. The medical evidence of record, including the VA medical records and the May 2000, April 2001 and April 2013 VA examination reports, collectively indicates that, throughout the duration of the appeal, the Veteran's PTSD was productive of symptoms, at worst, resulting in occupational and social impairment with deficiencies in most areas, including work, judgment, thinking and mood. These records demonstrate the Veteran's psychiatric symptoms, at worst, included: near continuous panic affecting the ability to function independently, appropriately and effectively; depression; anxiety; irritability and anger; poor concentration; some suicidal thoughts and ideation; intrusive thoughts, flashbacks and nightmares; sleep disturbance; hypervigilance and exaggerated startle; avoidance of crowds and triggers of psychiatric trauma; social isolation and detachment; some memory problems; and fair judgment and insight. His PTSD has been characterized as chronic and severe by VA treatment providers during this period. Throughout the period of the appeal, his GAF scores ranged from 40 to 65, thereby indicating serious symptoms at worst; however, because the disability ratings are not assigned based solely upon GAF scores, the Board finds it reasonable to conclude that the acquired psychiatric condition symptomatology described in the record more nearly approximates the criteria for a 70 percent rating. Accordingly, the probative lay and medical evidence of record supports the assignment of an initial disability rating 70 percent for PTSD for the entire period on appeal. Although an increased 70 percent rating is warranted, the preponderance of the evidence is against a finding of entitlement to an evaluation exceeding 70 percent at any time throughout the duration of the appeal. As noted in Mauerhan, the Veteran need not have all or even most of the particular symptoms in order to warrant a 100 percent evaluation, however, his psychiatric symptomatology does not demonstrate total social and occupational impairment. See Mauerhan, 16 Vet. App. 436. Notably, no medical professional has ever opined, and the evidence does not otherwise show that the disability results in total social and occupational impairment. The evidence of record does not indicate that the Veteran's PTSD has been manifested by such symptoms as gross impairment in thought processes or communication, persistent delusions or hallucinations, disorientation to time or place, or memory loss for names of close relatives, or his own name. Despite some reports and findings of suicidal thoughts and ideation, the probative evidence of record does not demonstrate that the Veteran has been shown to be a persistent danger of hurting himself or others. In addition, VA medical records reflect the Veteran maintained relationships with his brother, whom he lives with, his daughters and his grandchildren. On all psychiatric evaluations and treatment sessions, the Veteran presented with adequate hygiene and displayed appropriate behavior. Moreover, the evidence indicates that the Veteran is able to function independently, perform activities of daily living, and manage his own finances. Considering all the lay and medical evidence of record as it relates to PTSD's impact on the Veteran's functional and occupational impairment, the Boards finds that the evidence does not demonstrate total impairment. Therefore, the probative evidence of record does not more nearly approximate the criteria for a 100 percent schedular disability rating at any time since the filing of the claim for this disability. 38 C.F.R. §§ 4.3, 4.7. The Board has considered the lay statements of record regarding the severity of the Veteran's PTSD and has relied on these reports in determining appropriate disability rating under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7 (2017). The Veteran is competent to report on factual matters of which he has firsthand knowledge and his statements regarding his symptoms are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). Where the Veteran has not discussed particular findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to objective medical findings of record which specifically address the rating criteria. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Accordingly, the Board concludes that the Veteran's PTSD warrants a disability rating of 70 percent, but no higher, throughout the duration of the appeal. 38 C.F.R. §§ 3.102, 4.3 (2017). See also 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Overall, there exists no basis under the schedular criteria for an initial disability rating in excess of 70 percent for this disability at any time throughout the duration of the appeal. 38 C.F.R. §§ 4.3, 4.7 (2017). ORDER For the period prior to July 14, 2010, an initial disability rating of 70 percent, but no higher, for PTSD is granted, subject to the regulations applicable to the payment of monetary benefits. For the period from July 14, 2010, an initial disability rating in excess of 70 percent for PTSD is denied. REMAND It is unclear from the evidence of record when the Veteran was last gainfully employed. VA medical records indicate that he last worked in 1995, and other evidence indicates that he worked part time for a couple of short periods thereafter and underwent vocational rehabilitation at VA in 2014. The Board observes, however, in an April 2015 VA form 21-4192, Request for Employment Information in Connection with Claim for Disability, the Veteran reported that he had been self-employed as an "installer" from January 1968 to April 2011, he earned $50,000 in 12 months preceding last date of employment and he left employment due to health reasons. In addition, he listed "40" in column of number of hours worked daily, indicating he worked full time. As there appears to be contradictory information regarding the Veteran's employment history, this claim should be remanded in order to obtain clear information regarding his past employment. As the record reflects the Veteran has received continuing treatment at VA, any outstanding and current ongoing medical records should also be obtained. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all pertinent VA and private medical records the Veteran adequately identifies. 2. Then, develop the issue of entitlement to a TDIU, to include contacting the Veteran and his attorney in order to clarify his employment history since 1995, to include clarification of whether he worked full-time from January 1968 to April 2011 per his report in the April 2015 VA form 21-4192, in contradiction to other evidence of record. If necessary, provide the Veteran with the formal TDIU application form (VA Form 21-8940 - Veteran's Application for Increased Compensation Based on Unemployability), and forward a VA Form 21-4192, Request for Employment Information in Connection with Claim for Benefits, to all Veteran's employer(s) listed in his VA Form 21-8940. All efforts to obtain such records must be documented in the claims file. If a negative response is received from the employer(s), document such in the claims file and provide the Veteran appropriate notice. 3. Then readjudicate the claim in light of this and all other additional evidence. If the claim continues to be denied or are not granted to the Veteran's satisfaction, send him and his attorney a supplemental statement of the case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of the claims. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ DELYVONNE M. WHITEHEAD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs