Citation Nr: 1820545 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 12-28 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis. ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran had active military service from December 1967 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in pertinent part, denied entitlement to a TDIU. In January 2014, January 2015, and August 2016, the Board remanded the claim for further evidentiary development, which has been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. Prior to November 2, 2017, the Veteran's PTSD symptoms were not of the severity to render the Veteran unable to obtain and maintain substantially gainful employment. 2. Since November 2, 2017, the Veteran's PTSD symptoms have been of the severity to render the Veteran unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to November 2, 2017, the criteria for a TDIU, to include on an extraschedular basis, were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16(b) (2017). 2. Since November 2, 2017, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16(a) (2017). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ; Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). II. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a), 4.19. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16. Certain percentage requirements must be satisfied to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. In cases where the schedular requirements for TDIU consideration are not satisfied, VA policy is to grant a TDIU in all cases where service-connected disability precludes gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). Where the percentage requirements are not satisfied but unemployability is shown, the case must be referred to the Director of the Compensation and Pension Service ("Director") for extraschedular consideration. Id. The Board may not grant a total rating in the first instance. However, where there has been a review by the Director, that determination is subject to review by the Board on appeal. Anderson v. Shinseki, 22 Vet. App. 423, 277-28 (2009). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. Id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the Veteran is service-connected for PTSD, which was rated 50 percent disabling prior to November 2, 2017 and 70 percent disabling thereafter. Accordingly, the Board will consider whether a TDIU is warranted on an extraschedular basis prior to November 2, 2017 and whether he has been entitled to a TDIU on a schedular basis since that date. The central inquiry is whether the Veteran's service-connected PTSD alone has been of sufficient severity to produce unemployability. In this case, the Veteran has a ninth grade education and last worked full time for the U.S. Postal Service (USPS) in April 2009. He had worked for USPS since April 1970. He indicated that he stopped working due to his PTSD symptoms. See Veteran's Application for Increased Compensation Based on Unemployability, dated April 2009. In May 2009, the Veteran's supervisor indicated that the Veteran retired. See Request for Employment Information in Connection with Claim for Disability Benefits, Dated May 2009. In December 2010, the Social Security Administration (SSA) indicated that the Veteran had not applied for SSA disability benefits. The Board reviewed treatment records from Dr. E.H. with G.P.C., the Veteran's private psychiatric provider. Treatment records from October 2009 show the Veteran felt anger and sadness out of the blue, fear, depressed, agitated, anger, mood swings, low energy, and racing thoughts about 25 percent of the time. He felt suicidal once since his last appointment. He felt worry about 50 percent of the time. He reported having auditory hallucinations once per week or less. The Veteran never felt helpless or hopeless, and never had crying spells. He had an exaggerated startle response and was hypervigilant. Dr. E.H. found that he was doing "better." He had occasional intrusive thoughts and feelings that someone was standing behind him. He socialized occasionally with friends and family. His memory was "better." The provider assigned an Axis V, Global Assessment of Functioning (GAF) score of 45. In January 2010, the Veteran reported that he had one or two nightmares, flashbacks, and panic attacks per month. In April 2010, he reported feeling depressed 25 percent of the time. In October 2010, he reported nightmares twice a month and flashbacks once a month. He felt depressed at times. Dr. E.H. found that the Veteran's disability picture was "about the same." The Veteran had a VA examination to assess his PTSD in December 2010. At that time, the Veteran reported difficulty sleeping, anxiousness, and intrusive thoughts. He indicated that he was easily startled, hypervigilant, intolerant of crowds, and short-tempered. He stated that his concentration was not good and that he had diminished interest and energy. Regarding past employment, the Veteran reported that he retired after working full time. He had some difficulty interacting with others and kept to himself. He lived with his wife, to whom he had been married since 1969. He had one daughter, with whom he was close. He had very few friends. The examiner found the Veteran alert and cooperative. His mood was calm and his affect was appropriate. The examiner did not observe any impairment of thought processes, communications, orientation, memory, insight judgment, or intellectual capacity. The examiner indicated that prior to his retirement, the Veteran worked regularly and did not miss work but had difficulty interacting with others, peers, and supervisors. The Veteran was always anxious, short-tempered, stayed to himself, was sad all of the time, and had few friends. The examiner opined that the Veteran's psychiatric symptoms resulted in impairment of employment and social functioning and that because of the nature and extent of his symptoms, any employment would be problematic. The examiner assigned a GAF score of 51, indicating moderate symptoms. Private treatment records from G.P.C. dated February, May, August and November 2011 show continued sleep problems and panic attacks twice a month. Treatment records dated February, May, and August 2012 show continued sleep problems and panic attacks two to three times a month. The provider said his PTSD was about the same. In December 2012, the Veteran's anger and depression were worse and he was having auditory hallucinations twice a week. In February 2013, the Veteran was distractible, and had depressed mood and labile and blunted affect. He reported auditory and visual hallucinations. He continued to have sleep problems, panic attacks twice a month, monthly flashbacks, and worsening anger, depression, and recent memory. The provider assigned a GAF score of 40. See also treatment records dated May, August and November 2013. Similar symptoms were noted in June and December 2014, with a GAF score of 45. In June 2015, the Veteran's wife reported that his memory was worse. The provider stated that there was no change in PTSD symptoms or depression. In December 2015, the Veteran reported that he became agitated easily in crowds. The GAF score throughout 2015 was 45. In June 2016, the Veteran continued to have sleep problems and nightmares. He had panic attacks twice a week, monthly flashbacks, and monthly auditory hallucinations. His anger and depression were worse. His short term memory was the same. The provider noted that his affect was flat and mood was depressed. The Veteran preferred to be alone. The provider assigned a GAF score of 35. In December 2016, the Veteran had broken sleep, nightmares twice per month, panic attacks once per month, flashbacks once per week, and weekly night sweats. He had auditory hallucinations and his anger was worse. His depression and short term memory were the same. The provider noted that his affect was flat and mood was depressed. He was easily distracted. The provider assigned a GAF score of 35. Treatment records dated June 2017 show sleep problems, nightmares twice per month, panic attacks twice per month, and flashbacks 3 times a month. His anger, depression, and short term memory were the same. The provider stated that the Veteran's PTSD symptoms were slightly down. His depression continued. He was sleeping better. He was not socializing but was still married to his first wife. A January 2018 VA examination report shows the Veteran reported continued to isolate from others. He rarely left the house to socialize. He went to doctor's appointments and church but did not engage in social activities at church. When in public places, such as restaurants, he left as soon as he could. He was hypervigilant and guarded in public. He was more irritable and had moderate to severe psychosocial maladjustment. He had difficulty with focusing and concentration. The examiner stated that his current level of anxiety, depression, avoidance behavior, difficulty with attention and concentration, difficulty handling stress, fatigue for lack of restful sleep, and panic attacks would be expected to cause at least moderate to severe occupational impairment. The examiner found that the Veteran's symptoms caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. He also had difficulty in establishing and maintaining effective work and social relationships. As noted above, prior to November 2, 2017, the Veteran did not meet the schedular criteria for a TDIU. In January 2014, the Board referred the issue of entitlement to an extraschedular TDIU to the Director for consideration. The Director provided an administrative opinion in April 2014, which the Board found inadequate in its January 2015 remand order. The Board remanded the matter and the Director provided additional decisions in March 2016 and August 2017. Each decision denied entitlement to a TDIU on an extraschedular basis. The Board will now review the matter de novo. The Board has reviewed all of the evidence, but finds that the Veteran is not entitled to an extraschedular TDIU prior to November 2, 2017. The Board acknowledges the December 2010 VA examiner's finding that the nature and extent of the Veteran's PTSD symptoms would cause impairment of employment. However, the examiner did not indicate that the Veteran's symptoms would prevent substantially gainful employment. The examiner did not observe any impairment of thought processes, communications, orientation, memory, insight, judgment, or intellectual capacity. At most, the Veteran indicated some difficulty interacting with others, including supervisors. The examiner indicated that prior to his retirement the Veteran worked regularly and did not miss work. The Board considered the private treatment records from Dr. E.H. and G.P.C.; however, the records do not indicate that the Veteran's symptoms were of the severity to render the Veteran unable to obtain and maintain substantially gainful employment prior to November 2, 2017. The records show impairment of mood, including depressed mood and anger, and impairment of recent memory; however, the records do not show impaired judgment, thinking, or thought process. The Veteran was able to continue attending church and maintain relationships with family members. While he did not like being in public or crowds and did not socialize beyond church service and family, these symptoms do not indicate unemployability for TDIU purposes. The Board observes that some treatment records include GAF scores. GAF scores have historically been used by mental health professionals to assess an individual's psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness, and were incorporated into prior versions of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, including the DSM-IV that the VA transitioned from in August 2014. The DSM-5 eliminated GAF scores because of their "conceptual lack of clarity" and "questionable psychometrics in routine practice." Golden v. Shulkin, M.D., No. 16-1208 (February 23, 2018). Since this case was certified to the Board prior to the transition to the DSM-5, the Board will consider the GAF scores in this instance. As noted above, the Veteran's GAF scores ranged from 35 to 51 between 2009 and 2016, indicating moderate to severe symptoms. However, the Board finds that the GAF scores are not indicative of the Veteran's ability to obtain and maintain substantially gainful employment because the symptoms documented in the treatment records do not support the assigned scores. For example, GAF scores ranging between 41 and 50 are assigned when there are 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). GAF scores ranging between 31 and 40 are assigned when there is 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). During the pendency of the appeal, the Veteran has been oriented to time, place, and person and his judgment, thought processes, and insight have not been impaired. He maintained a good relationship with his wife and child, and attended church service. The providers did not indicate that the Veteran had problems communicating. While the Veteran did not like crowds and did not socialize, these symptoms related to social impairment do not support a finding that he was unable to obtain and maintain substantially gainful employment. The Board also acknowledges the Veteran's impairment of recent memory and mood, including his worsening anger and depression; however, the providers have not indicated that the severity of these symptoms render the Veteran unable to obtain and maintain substantially gainful employment. The Board also finds the GAF scores are not determinative of the Veteran's occupational impairment because he retired in April 2009 from his employment after 39 years. Prior to his retirement, the Veteran was working full time; however, his GAF scores ranged from 35 to 55 throughout 2005 and 2006 and from 45 to 60 from 2007 to 2009. There is no evidence that the Veteran missed any days of work due to his disability. Thus, the Board cannot find that the GAF scores alone support a finding of unemployability. Consequently, without evidence that the Veteran's symptoms of PTSD were of the severity to render the Veteran unable to obtain and maintain substantially gainful employment, the Board finds that entitlement to an extraschedular TDIU prior to November 2, 2017 must be denied. Regarding entitlement to a schedular TDIU from November 2, 2017, the Board finds that a TDIU is warranted. According to the January 2018 VA examiner, the Veteran's current level of anxiety, depression, avoidance behavior, difficulty with attention and concentration, difficulty handling stress, fatigue for lack of restful sleep, and panic attacks would be expected to cause at least moderate to severe occupational impairment. The examiner found that the Veteran's symptoms caused occupational and social impairment with deficiencies in most areas. Since the examiner indicated possible severe impairment due to identified symptom, the Board finds a TDIU is warranted from November 2, 2017. To this extent, the appeal is granted. ORDER Entitlement to a TDIU prior to November 2, 2017 is denied. A TDIU from November 2, 2017 is granted, subject to the regulations governing the award of monetary benefits. ____________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs