Citation Nr: 1823490 Decision Date: 04/20/18 Archive Date: 04/26/18 DOCKET NO. 14-30 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased initial disability rating in excess of 30 percent prior to March 31, 2014 for post-traumatic stress disorder (PTSD). 2. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Brett W. Buchanan, Agent ATTORNEY FOR THE BOARD J. Setter, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1988 to March 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2012 and May 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. By way of background, the Veteran was granted entitlement to service connection to PTSD in a March 2012 rating decision, with a compensable evaluation of 30 percent, effective from November 2, 2011. The RO increased the rating of the Veteran's PTSD in a May 2014 rating decision to an evaluation of 70 percent, and denied a claim for TDIU. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice, 22 Vet. App. 447. In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Further, while adjudication of TDIU is part of this decision, there is no lay or medical evidence that the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). As such, the Board will not infer the issue of entitlement to SMC at this time. As part of his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge. In correspondence dated February 24, 2017, the Veteran was properly notified of the date, time and location of the scheduled videoconference hearing, but failed to report for the hearing without explanation or any request to reschedule. The hearing request is therefore considered withdrawn. 38 C.F.R. § 20.704(d). The issue of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving all doubt in the Veteran's favor, for the period prior to March 31, 2014, the Veteran's PTSD has been manifested by 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. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for an increased initial rating of 70 percent, but no more, prior to March 31, 2014 for service-connected PTSD have been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). II. Increased Rating Claim For PTSD The Veteran seeks a rating in excess of 30 percent for PTSD prior to March 31, 2014. The Veteran has maintained his PTSD is more severe than initially rated and that initial period should be rated higher. The Veteran has not appealed his 70 percent rating from March 31, 2014 forward. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Use of the term "such as" in the criteria for a rating under § 4.130 indicates that the list of symptoms that follows is "non-exhaustive," meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign to a rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because "[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology," and the plain language of the regulation makes it clear that "the veteran's impairment must be 'due to' those symptoms," "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." Vazquez-Claudio, 713 F.3d at 116-17. "[I]n the context of a 70 [percent] rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. at 117. Thus, assessing whether a 70 percent evaluation is warranted requires a two-part analysis: "The . . . regulation contemplates [: (1) ] initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation[; and (2) ] an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas." Vazquez-Claudio, 713 F.3d at 118. 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 adjustment during periods of remission. 38 C.F.R. § 4.126. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. Id. The Board notes that during the pendency of the claim all references to the DSM-IV have been updated to refer to the DSM-5, which utilizes altered criteria for diagnosing PTSD. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). However, this change does not apply to appeals that were pending before the Board (i.e. certified for appeal) prior to August 4, 2014, even if such claims are subsequently remanded. Id. As such, the criteria for diagnosing PTSD contained in the DSM-IV are still applicable in this case, and any diagnoses made based on those criteria are still probative of the issue at hand. Id. Further, a diagnosis of PTSD in conformity with the DSM-5 was provided in a March 2014 VA examination and therefore competent diagnoses under both sets of criteria are of record regardless. Although DSM-IV applies to this appeal, it is worth noting that, according to the DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. See Golden v. Shulkin, No. 16-1208, 2018 U.S. App. Vet. Claims LEXIS 202 (Vet. App. Feb. 23, 2018) (GAF scores should not be used when assigning a psychiatric rating in cases where the DSM-5 applies). The Veteran's PTSD is rated under Diagnostic Code 9411, covering PTSD. 38 C.F.R. § 4.130. PTSD is rated using the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned for 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, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent 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 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 assigned 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id. Increased Rating for PTSD Prior to March 31, 2014 The Veteran initially received care from VA for his mental health disability in August 2010, and the earliest record within the appeal period is a February 2012 VA treatment note that recorded the Veteran's depression, anxiety, anger issues, nightmares, and insomnia complaints. The treating VA physician noted the Veteran being alert, oriented to person, time, and place, and also recorded the Veteran was being regularly seen by a VA social worker as part of regular outpatient care. PTSD, along with depression, anxiety, and insomnia were noted. On VA examination in March 2012, the examiner diagnosed chronic, moderate PTSD, and no other mental health disorder. During this examination, the Veteran was described has having occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner noted the Veteran had briefly held several jobs since leaving active service in 2008, none lasting more than 90 days, but was discharged from each for inability to function within the workplace. The examiner noted the Veteran's primary stressor, was that of being present in the Pentagon for the terrorist attacks of September 11, 2001, and his assistance to burned victims of the attack on that day. The examiner noted that discussing that stressor with the Veteran made him extremely agitated, and that the Veteran experienced recurrent and distressing recollections of the event, both while conscious and during sleep. As a result, the examiner noted, the Veteran made efforts to avoid activities, places, or people, and had feelings of detachment or estrangement from others. A restricted range of affect was noted. Irritability, outbursts of anger, hypervigilance, and exaggerated startle response were also noted. Symptoms of depressed mood, anxiety, and panic attacks that occur weekly or less often were also noted by the examiner. A GAF score of 60 was provided. On the same day of the March 2012 VA examination, but with a different examiner, the Veteran was evaluated in a social and industrial survey. This examiner noted the Veteran having been discharged from his most recent employment as a security guard in a poultry processing plant for behavioral issues, and from an information technology position prior to that, also for behavioral issues. The period of employment for each was less than 90 days. This examiner noted the Veteran's eye contact as fleeting, agitated, and restless, and that his affect was reactive and dysphoric. The Veteran described his own mood as grumpy and agitated, and admitted to guilt, hopelessness, depression, and worthlessness. The examiner noted the Veteran's speech was coherent but also extremely tangential, elaborative, and often off the topic. The Veteran admitted to suicidal ideation and hallucinations. The examiner noted the Veteran rarely leaves home, only about twice a month, and when he shops, he prefers 24-hour stores where he can shop in the middle of the night to avoid other people. The examiner noted that the Veteran's birthday reminds him of the terrorist attacks of that same day. This examiner characterized the Veteran's PTSD as chronic and severe, and noted a GAF score of 40. In an April 2012 VA treatment note by a social worker, the Veteran was being admitted to a residential PTSD program and noted he lives with severe depression, sleep deprivation, panic, flashbacks, hypervigilance, mood swings, dissociation, numbing, and self-isolation. The Veteran received a private mental health evaluation in July 2012. The examiner noted the Veteran's speech to be loud, pressured, and "tremulous," and showing signs of agitation. The examiner found the Veteran to be needlessly circumstantial, over-detailed, redundant, and not directly answer questions. The Veteran described his mood as anxious and the examiner considered his affect as angry. The examiner noted the Veteran's difficulty with basic questions and considered his concentration to be a 2 on a scale of 5, and that his insight and judgment were poor. The Veteran's interpersonal relationships were characterized as poor and that he is estranged from his siblings and avoids family and friends. This private examiner diagnosed PTSD and provided a GAF score of 50. In October 2012, the same VA social worker who evaluated the Veteran in April 2012 wrote an evaluation for the Veteran, where she noted the Veteran's treatment for his PTSD was interrupted by a state of homelessness due to the severity of his PTSD. The VA social worker expressly opined the Veteran was unable to work due to his PTSD, due to his symptoms and fear of others. The examiner noted the Veteran continues to have dissociation, very severe anxiety, severe depression, mood swings, anger outbursts, nightmares, extremely poor concentration, and task completion. He has an exaggerated startle reflex, is hypervigilant, has sleep disturbances, outbursts of anger, severe panic attacks, and nightmares about 9/11. The social worker continued, noting the Veteran frequently and automatically dissociates, has episodes of depersonalization, disorientation, isolation, and numbing to avoid the pain of his experience in the Pentagon on September 11, 2001. The social worker noted the Veteran would go into a spontaneous trance, does not remember behavior, and has fragmented memories and fluctuations in skills that impair his employment prospects and his ability to maintain a job. At times, the examiner noted, the Veteran has out-of-body experiences due to the extreme stress and terror that might come with a flashback, and that his anxiety makes it impossible for him to tolerate a work environment. Also in October 2012, the Veteran received a private mental health examination as part of his application for Social Security Disability. Here, the Veteran was evaluated as "markedly limited" (as compared to "not significantly limited" or "moderately limited") in the areas of understanding and memory, sustained concentration and persistence, and social interaction. This examiner noted a depressive syndrome characterized by anhedonia or pervasive loss of interest in almost all activities, appetite disturbance, sleep disturbance, psychomotor agitation, decreased energy, feelings of guilt or worthlessness, difficulty concentrating, thoughts of suicide, and delusions. Anxiety was noted with recurrent severe panic attacks, with recurrent and intrusive recollections of a traumatic experience. In March 2014, the Veteran received another VA examination for his PTSD. Here, a VA psychologist who had not evaluated the Veteran before noted a continuing diagnosis of PTSD under DSM-5 with occupational and social impairment with reduced reliability and productivity. This examiner noted the Veteran had separated from his spouse and said his children avoid him, and that he hadn't seen friends in over a year. Recurrent and distressful memories were noted, along with avoidance of possible reminders of his traumatic past. A persistent negative emotional state was noted, with markedly diminished interest or participation in significant activities, to include estrangement from others. Irritable behavior and angry outbursts with little or no provocation were noted. Hypervigilance, an exaggerated startle response, and sleep disturbances were noted. Symptoms of depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, to include work or a work-like setting were noted. Passive suicidal ideation was noted. In light of the foregoing, and providing all reasonable doubt to the Veteran, the Board finds that the Veteran's PTSD symptoms for the period prior to March 31, 2014 have resulted in an overall disability picture that more nearly approximates 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. The Board notes variation among the evaluations and treatment notes during this period, but also notes the Veteran has displayed declining symptoms and behaviors with the increasing worsening since the beginning of this period. The Veteran has been on multiple anti-depressant and other psychiatric medications throughout the appeal period and his doses have been changed throughout the period covered by this claim, indicating that the medication is only partially helping. Accordingly, and in resolving all doubt in the Veteran's favor, the criteria for the assignment of an increased initial evaluation of 70 percent have been more nearly approximated in this period for the Veteran's service-connected PTSD, prior to March 31, 2014. A rating in excess of 70 percent is not warranted at any time covered in the period prior to March 31, 2014. The evidence of record generally shows that the Veteran appeared oriented and understood the consequences of his actions. He was unemployed, unable to find further employment, but indicated he was trying to seek employment. He separated from his wife. The Veteran preferred isolation and exhibited significant avoidance behavior, though he did not show himself to be a danger to himself or others. Panic attacks are noted in this period but are not near-continuous. The Veteran's PTSD symptoms do not more nearly approximate 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. For these reasons, and in consideration of all of the evidence of record, the Board finds that total occupational and social impairment due to PTSD symptoms is not demonstrated during this period. Accordingly, the severity of the Veteran's service-connected PTSD more nearly approximates levels of occupational and social impairment with deficiencies in most areas, and therefore a rating of 70 percent for the service-connected PTSD is warranted for the period prior to March 31, 2014. Mauerhan, 16 Vet. App. at 442; Vasquez-Claudio, 713 F.3d at 116-17. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to an increased initial rating of 70 percent for PTSD, prior to March 31, 2014, is granted. REMAND The Veteran seeks entitlement to a TDIU, asserting that his service-connected PTSD renders him unemployable. Currently, the Veteran is service-connected only for his PTSD, at an evaluation of 70 percent from November 2, 2011 forward, as of this Board decision. The Veteran last received an evaluation for his PTSD in March 2014, and during that examination, the Veteran's social and occupational functioning was not fully addressed. In the July 2014 substantive appeal, the Veteran's representative argued that the Veteran was fired from three jobs due to PTSD. The Board finds that in light of the additional argument and evidence, a VA examination to assess the Veteran's social and occupational impairment due to PTSD is warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain any updated VA treatment records and any other examinations and add them to the claims file. Also, with appropriate authorization from the Veteran, obtain any additional outstanding private treatment records identified by him as pertinent to his claims. 2. Schedule the Veteran for an examination to determine the nature and severity of his service-connected PTSD. The examiner is requested to describe all manifestations and symptoms of the Veteran's service -connected PTSD, to include the occupational and functional impairment caused by the service-connected disability and medications taken for it. All appropriate diagnostics should be accomplished and all clinical findings should be reported in detail. 3. Thereafter, readjudicate the TDIU claim on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. 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). 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. §§ 5109B, 7112 (2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs