Citation Nr: 1822239	
Decision Date: 04/12/18    Archive Date: 04/25/18

DOCKET NO.  14-20 567	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to an increased rating in excess of 50 percent for post-traumatic stress disorder (PTSD). 

2. Entitlement to a total rating for compensation based on individual unemployability (TDIU).                      


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Norwood, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1988 to February 1991, December 2003 to April 2005, and August 2008 to November 2008. He died in January 2012. The appellant is the Veteran's spouse.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In March 2017, the appellant testified during a videoconference hearing before the undersigned. A transcript of that hearing is of record.

In January 2012, the appellant submitted a motion to advance her appeal on the docket due to financial hardship. However, the appellant has not submitted any additional evidence in support of her motion or even a statement of the basis for the claim of financial hardship. 38 U.S.C. § 7107(a) (2012); 38 C.F.R. § 20.900(c) (2017). In the absence of sufficient cause, the appellant's motion to advance on the docket is denied. Id.


FINDINGS OF FACT

1. From August 15, 2006, the date medical evidence first provided for a diagnosis of PTSD that was linked to military service, the Veteran's service connected PTSD resulted in, at most, occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

2. The Veteran maintained some social and occupational ability, and did not manifest symptoms of such severity, duration or frequency that demonstrated total occupational or social impairment.

3. The Veteran's service-connected disabilities precluded him from performing gainful employment.


CONCLUSIONS OF LAW

1. The criteria for an initial rating of 70 percent, but not higher, for PTSD are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).

2. The criteria for a TDIU due to service-connected disabilities have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. The Veterans Claims Assistance Act of 2000 

With respect to the appellant's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

II. Increased Rating 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. Schafrath v. Derwinski, 1 Vet. App. 589 (1991)

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath at 589.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment, rather than solely on the examiner's assessment of the level of disability at the moment of examination. The rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. 

The appellant is seeking an increased rating for the Veteran's service-connected PTSD. The Veteran's PTSD is currently rated as 50 percent disabling under Diagnostic Code 9411, in accordance with the General Rating Formula for Mental Disorders (General Rating Formula). See 38 C.F.R. § 4.130.

In relevant part, the rating criteria are as follows:

Under the General Rating Formula, a 70 percent evaluation 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 which interfere with routine actives; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. 

A maximum 100 percent evaluation 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. Id.

The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Although the Veteran's symptomatology is the primary consideration, the Veteran's level of impairment must be in "most areas" applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).

In evaluating the Veteran's level of disability, the Board has considered the Global Assessment of Functioning (GAF) scores as one component of the overall disability picture. GAF is a scale used by mental health professional and reflects psychological, social, and occupational functioning on a hypothetical continuum of mental health illness and is relevant in evaluating mental disability. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV)). Prior to August 4, 2014, VA's Rating Schedule for psychiatric disabilities was based upon the DSM-IV. 38 C.F.R. § 4.130. The DSM was updated with a 5th Edition (DSM-5), and VA issued an interim final rule amending certain provisions in the regulations to reflect this update, including the Schedule for Rating Disabilities. 70 Fed. Reg. 45093 (Aug. 4, 2014). This updated medical text recommends that GAF scores be dropped due to their "conceptual lack of clarity." See DSM-5 at 16. 

However, since the appellant's PTSD claim was originally appealed to the Board prior to the adoption of the DSM-V, the DSM-IV criteria, including GAF scores, will be utilized in the Board's analysis. According to DSM-IV, a GAF score between 41 and 50 is indicative of 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, inability to keep a job). A GAF score between 51 and 60 is indicative of 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 coworkers). A GAF score of 61 to 70 indicates mild symptoms or some difficulty in social, occupational, or school functioning, but general ability to function well with some meaningful interpersonal relationships. 

An August 2006 VA treatment note indicates that the Veteran was diagnosed with chronic PTSD. The Veteran reported sleeping impairment, anxiety, and irritability. He had a depressed mood, but intact judgment and insight. He denied hallucinations, sensory distortions, and suicidal or homicidal ideation.
In March 2008, the Veteran was assigned a GAF score of 55. In April 2008, he endorsed symptoms of intrusive thoughts regarding his service in Iraq. He was well groomed, clean shaven,  alert, and oriented. He exhibited fair concentration, mildly irritable affect, and frustration with some dysphonia and guilt. He denied hallucinations or suicidal or homicidal ideation.

In January 2008, the Veteran was diagnosed with PTSD, bipolar I disorder, and ADHD by history. The Veteran's PTSD was noted as seriously affecting his ability to maintain personal habits; understand, carry out, and remember instructions; respond to customary work pressures; and perform varied tasks.  He was assigned a GAF score of 45. 

An April 2008 VA examiner diagnosed the Veteran with PTSD, which the examiner reported was related to the Veteran's military service. The examiner assigned a GAF of 70 and indicated that the Veteran had problems with procrastination, concentration, and impaired sleep due to traumatic dreams. The examiner reported that the Veteran had difficulties with his relationships, trust, concentration issues, and reacting appropriately. The Veteran was able to maintain minimum personal hygiene and had a slight problem with activities of daily living. The examiner reported that the Veteran was able to work and capable of managing his financial affairs.

A July 2010 VA treatment note indicates that the Veteran had fair hygiene/grooming and insight. However, the Veteran was fidgety/hyperactive, "childish" in demeanor, and exhibited minimal insight. He reported that his mood was "not great," but he had concrete thinking style and linear thought process. He denied hallucinations or suicidal or homicidal ideation. The Veteran was assigned a GAF score of 55.

At a March 2011 VA examination, the Veteran reported worsening memory problems, poor mood, fatigue, difficulty concentrating, hopelessness, and sleeping difficulties. He denied suicidal or homicidal ideation, hallucinations, inappropriate behavior or obsessive/ritualistic behavior, panic attacks, and episodes of violence or memory problems. The examiner reported that the Veteran was oriented and showed no difficulty with attention and concentration. He was able to maintain minimum personal hygiene and had no problems with activities of daily living. The examiner reported that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. The examiner found the Veteran s treatment record was "incongruent"  with observations made during his in-person examination, as the Veteran's behaviors, including his facial expressions and body movements vocalizations, appeared "exaggerated and caricature-like" and inconsistent with symptoms of PTSD and/or a mood disorder. The examiner reported that it was "impossible to make an accurate assessment and/or assign an accurate  GAF score" based on his examination. 

A June 2012 letter from the Veteran's psychologist indicates that he received therapy for symptoms of  PTSD, depression, and panic attacks.

As stated previously, the Veteran died in January 2012. The Board notes that an October 2012 rating decision granted service connection for cause of death based on the Veteran's amended death certificate, which showed PTSD contributed significantly to his death.

At the March 2017 hearing, the appellant testified that the Veteran had problems with memory, daily activities, hypervigilance, hallucinations, flashbacks, odd behavior, working with others, and anger management. She also testified that the Veteran's PTSD contributed to marital problems. 

The appellant's mental health counselor indicated in a March 2017 letter that the appellant had discussed the effects of the Veteran's PTSD symptoms on their marriage.

Upon careful review of the evidence, the Board finds that the degree of the Veteran's symptomatology more nearly approximated a 70 percent disability rating for the entire appeal period. In other words, resolving doubt in favor of the Veteran, the Board finds that the evidence supports a 70 percent rating beginning April 15, 2006. 38 U.S.C. § 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 

The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work and family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). 

Although the evidence shows that there have been some instances during the rating period when the Veteran's PTSD was not quite as severe as noted in the March 2017 testimony of the Appellant, the Veteran had consistently reported significant symptoms related to his PTSD with little improvement. The Board notes at this juncture that VA will handle cases affected by change in medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation and pension. 38 C.F.R. § 3.344(a). As such, the Board finds that the 70 percent rating for PTSD pursuant to Diagnostic Code 9411 is warranted for the entire appeal period. 

The Board finds, however, that a disability rating greater than 70 percent is not appropriate for any point during the appeal period because the Veteran did not have total social and occupational impairment. During the appeal period, the Veteran's PTSD manifested by symptoms such as depressed mood, anxiety, sleep impairment, memory loss, lack of concentration, disturbances of mood and motivation, hypervigilance, and difficulty in establishing and maintaining effective work and social relationships, all resulting in deficiencies in most areas, but less than total social and occupational impairment. 

Although the Veteran clearly had a serious disability, the Veteran exhibited few of the symptoms noted as applicable for a 100 percent rating. There had been no indication of gross impairment of thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting oneself or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relative, own occupation, or own name. 

Despite the appellant's testimony that the Veteran experienced hallucinations, the Veteran routinely denied hallucinations and suicidal or homicidal ideation in his VA psychological examinations and therapy sessions and there is no other medical evidence indicating otherwise. The appellant testified that the Veteran was violent with her on a couple of occasions during their marriage, but not on a persistent basis. She also testified that the Veteran was not suicidal, as "it was against his religion." 

Although the appellant testified that the Veteran had significant memory, concentration, and orientation problems, such as forgetting the day of the week, names, and directions, there is no indication of memory loss that rises to such a level. On the contrary, at the April 2008 and March 2011 VA examinations, the Veteran was documented as oriented and showing no difficulty with attention and concentration. In July 2010, he endorsed concrete thinking style and linear thought process.

The Board also notes the appellant's contentions that the Veteran was unable to maintain minimal personal hygiene or perform daily activities of living. However, the Board does not feel that this rises to level of neglect of personal hygiene. For instance, at the April 2008 and May 2011 VA examinations there was no indication that the Veteran neglected his personal appearance or hygiene or that there was an intermittent inability to perform activities of daily living.

The Veteran's PTSD clearly impacted all areas of his life and functioning and a 70 percent rating is appropriate, as his symptoms did not manifest as a total occupational and social impairment as contemplated by a 100 percent initial rating.

The Board has considered the Appellant's contentions, as reflected in her March 2017 hearing testimony, that the Veteran's PTSD manifested by total occupational and social impairment. The Appellant is competent to describe the Veteran's symptoms and the Board does not doubt that the Veteran's PTSD had an impact on his daily functioning. In this case, however, the Board finds that the objective medical findings by skilled medical professionals are more persuasive. 

Thus, upon consideration of all the evidence and resolving any reasonable doubt in favor of the Veteran, the Board concludes that an initial disability rating of 70 percent, but no higher, is warranted for the Veteran's PTSD for the entire appeal period, effective August 15, 2006.

III. TDIU

A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340 , 3.341, 4.16(a). For the purpose of determining whether a Veteran meets the criteria for assigning a schedular TDIU, disabilities resulting from a common etiology and disabilities affecting a single body system are considered to be one disability. Id.  

Before this Board decision, the Veteran was service connected for PTSD, rated at 50 percent as of August 15, 2006; tinnitus, rated at 10 percent disabling as of April 16, 2005; and chronic lumbar strain and osteoarthritis, rated at 10 percent disabling as of September 20, 2010. As of this Board decision, the Veteran is service connected for PTSD, rated at 70 percent for the entire appeal period, therefore the Veteran's service-connected disabilities have met the percentage rating standards for a schedular TDIU as of August 15, 2006. See 38 C.F.R. § 4.16(a). Thus, the Veteran meets the threshold requirement for obtaining a schedular TDIU during the period on appeal. 

The crucial inquiry in determining whether the Veteran is entitled to TDIU is not whether the Veteran is able to pursue his profession of choice, or indeed any particular job. Instead, the Board must inquire as to whether the Veteran can secure and follow a substantially gainful occupation in a more general sense. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a Veteran is unemployed is not enough. It must be determined that his service-connected disabilities, without regard to his advancing age, make him incapable of performing the acts required by employment. Id.  

The April 2008 examiner found that the Veteran's PTSD interfered "with concentration and emotional control that affects his ability to demonstrate good judgment, job performance, and personal relationships."

In a September 2010 statement, the Veteran indicated that his PTSD was worsening; that medication made it difficult for him "to hold a job"; and that he had severe low back pain.

In a March 2011 VA examination, the Veteran reported that he was working as a  substitute teacher on a part-time basis and participating in the National Guard. He reported that he had been fired while serving on Honor Guard "over stupid stuff,"  but that he retrieved golf balls. 

Testimony from the appellant at the March 2017 hearing attests essentially to the Veteran's psychiatric symptoms and difficulty with daily activities of living. The appellant testified that the Veteran had difficulty performing daily activities of living, such as showering and remembering appointments. She further testified that although the Veteran worked four days a week retrieving golf balls from lakes, he would miss work and lose jobs due to panic attacks and his temper. She testified that the Veteran's last full time employment was prior to 2008 and that he had not been employed otherwise except for Honor Guard and "being on orders through the unit." 

Considered together, the Board finds that the Veteran's PTSD precluded him from performing gainful employment for which his education and occupational experience would otherwise qualify him. The Board is charged with the duty to assess the credibility and weight given to evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this capacity, the Board finds the appellant's assertions about the severity of the Veteran's service-connected PTSD and its impact on his ability to function in a work setting to be credible. The Board further finds that the service-connected PTSD clearly placed significant barriers to the Veteran's obtaining and securing substantially gainful employment. These findings together are enough to support a determination that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD.    

The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). In light of the above, Board resolves all benefit of the doubt in the Veteran's favor and finds that the evidence of record supports the grant of TDIU.


ORDER

Entitlement to an initial rating of 70 percent, but not higher, for PTSD is granted.

Entitlement to a TDIU is granted, subject to the law and regulations governing the payment of monetary benefits.



____________________________________________
M.H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs