Citation Nr: 1827489 Decision Date: 05/03/18 Archive Date: 05/14/18 DOCKET NO. 10-43 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent prior to March 10, 2011 and 70 percent after March 10, 2011, for posttraumatic stress disorder (PTSD). 2. Entitlement to a total rating based on individual unemployability (TDIU), prior to March 10, 2011. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and the appellant ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1969. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran and the appellant testified before the undersigned Veterans Law Judge during an October 2014 videoconference hearing; a transcript is of record. The Board remanded the appeal in January 2015, directing VA to obtain an updated VA examination for the Veteran's PTSD and to obtain employment information from the Veteran in regards to his claim for a TDIU. In December 2014, the Veteran passed away; however, notice of the death of the Veteran was not received prior to the release of the January 2015 remand. A May 2015 letter from the RO found that the Veteran's surviving spouse was eligible for substitution in the Veteran's pending claims for an increased initial rating for PTSD and a TDIU. The appellant as the Veteran's surviving spouse has been substituted as the claimant for purpose of entitlement to accrued benefits. 38 U.S.C. § 5121A (2012). As the substituted claimant, the appellant may proceed in furtherance of these identified claims that were still pending at the time of the Veteran's death. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. FINDINGS OF FACT 1. Since August 18, 2008, the Veteran's PTSD, as likely as not, was manifested by suicidal ideation; near-continuous depression affecting the ability to function independently, appropriately and effectively; difficulty in adapting to stressful circumstances (including work setting); inability to establish and maintain effective relationships, resulting in occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. The Veteran reported to have had no hallucinations, gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, or persistent danger of hurting self or others. Further, the Veteran did not suffer from disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 2. Since August 18, 2008, the Veteran was as likely as not unable to secure and follow substantially gainful employment due to service connected disabilities. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria for a disability rating of 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. With resolution of reasonable doubt in the Veteran's favor, since August 18, 2008, the criteria of a finding of TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 4.1, 4.3, 4.7, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist 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 §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. Because service connection, an initial rating, and an effective date have been assigned, the notice requirements of the Veterans Claims Assistance Act (VCAA), 38 U.S.C. § 5103 (a), have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements as they relate to the increased rating claim is not necessary. VA has made reasonable efforts to assist the appellant by obtaining relevant records which were adequately identified. This includes securing service, VA, and private treatment records and providing adequate VA examinations. The Veteran and the appellant were notified and aware of the evidence needed to substantiate the claims, the avenues through which they might obtain such evidence, and the allocation of responsibilities between them and VA in obtaining such evidence. The Board's January 2015 remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998)(where remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). No further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Increased Rating for PTSD Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). PTSD is evaluated under the provisions of 38 C.F.R. § 4.130, and is subject to the criteria of the General Rating Formula for Mental Disorders that provide for the following: A 10 percent rating for mental illness is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent evaluation is warranted where there is 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 warranted 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. To demonstrate entitlement to a 70 percent evaluation, the evidence must show 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 worker a work like setting); inability to establish and maintain effective relationships. Entitlement to a 100 percent scheduler evaluation is warranted where there are such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126 (a) (2017). Furthermore, when evaluating the level of disability arising 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. 38 C.F.R. § 4.126 (b) (2017). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2017). The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather 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, 443 (2002). Thus, the Board will consider whether "the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code," and, if so, the "equivalent rating will be assigned." Id. The Federal Circuit held that a Veteran may only qualify for a given disability rating "by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) ("Reading [38 C.F.R. §§ 4.126 and 4.130] together, it is evident that the 'frequency, severity, and duration' of a Veteran's symptoms must play an important role in determining his disability level."). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2017). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2017). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Layno v. Brown, 6 Vet. App. 465, 469 (1994). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012) ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran was afforded VA examinations in November 2009 and March 2011. During the October 2014 Board hearing, the Veteran testified that he stopped going to treatment for his psychological conditions because he felt worse when he left a psychological therapy session at VA. Indeed, the record indicates that the Veteran refused to receive psychological treatment from time to time. In the November 2009 VA examination, the Veteran reported that he generally experienced thoughts about Vietnam when he laid down at night about twice a week and that his thoughts and bad dreams involved several events that took place while serving as an artillery maintenance man in combat zones in Vietnam. He stated that he experienced feelings of anxiety and sleep disturbance because of these memories. He also recalled a sense of helplessness and feelings of claustrophobia. He reported that he had had thoughts of suicide on a weekly basis for several years, but that he had not acted on these thoughts in the last year. The examiner noted that the Veteran became tearful when expressing this belief. The Veteran reported that he typically have 1 to 2 shots of whiskey before going to bed and would do this about twice a week because the use of alcohol seemed to relax him and helped him sleep. The Veteran reported that he was not receiving any form of mental health treatment or therapy. As for his social history, he reported that he had a good relationship with his family growing up. He worked as a route salesman for a bread company for 14 years and then as a manager for route sales for the same company for 4 years between 1969 and 1986. In 1986, he began employment as a staff member of a church, assisting with education and music. He maintained this work until 2004. In 2004, he started to work as a facility manager for a franchise shop. He continued this work until 2008. The Veteran believed that he was let go due to his physical limitation after his heart surgery. He began obtaining social security disability benefit since April 2009. The Veteran had been married for 42 years and had three children. The Veteran lived with his wife in a house. He reported that he helped around the house keeping and fed some chickens and cattle. He relied on his son and grandson to do most of the yard work. He reported that he would occasionally cook for his wife and spent some time reading and playing the guitar. The Veteran reported that he and his wife went out about once or twice a week. The examiner observed that he was clean and shaven and neatly groomed. His eye contact was good and his speech was clear and discernible. His organization of thought was logical, coherent, and goal directed. His mood and affect were generally appropriate and congruent. He became tearful when talking about suicidal thoughts and depression due to physical limitation. No abnormal mental trends involving delusions or hallucinations were found. The Veteran denied any present homicidal or suicidal ideations. He was given a diagnosis of PTSD with current GAF of 70. The examiner recommended that the Veteran would consider obtaining a psychotropic medication and some form of supportive psychotherapy to assist him with learning how to modulate his emotions, to think though, and to develop a more assertive and balanced stance toward his present life circumstances. In the March 2011 VA examination, the Veteran reported that he went to see a psychiatrist in the community about a month ago, but was unable to share anything with them because he was afraid his friends would find out why he was there. He had no mental health visits prior to, or since then. He had been reluctant to see a mental health provider, but he has been feeling depressed with crying spells, feeling hopeless and having some suicidal thoughts, in part, due to his medical problems. During this examination, the Veteran reported domestic violence incident in the 1970s, for which he was remorseful and tearful. The Veteran reported that his relationships with his children were strained mostly. As for the quality of social relationships, the Veteran reported that since he quitted work, he was isolating more and leaving the house less. His wife had been urging him to pay more attention to how he dressed himself, but the Veteran reported that he did not care anymore about his appearance. He reported that he no longer worked as a pastor for the church because he had personal conflicts with his pastor. He stated that he was "dropped" from the church due to the conflicts. The Veteran reported that he stopped working in the house farm because his legs got weak. Further, he stated that he lost interest in camping and outdoor activities. The Veteran reported that several years ago he put a loaded .45 caliber to his head and held it there for a while. But he reported that he made no suicide attempts since the last November 2009 VA examination. Initially, the Veteran denied problematic use of alcohol, but on the next day after the interview, he called the examiner to share that he was too ashamed to admit that he had a history of alcoholism and still drank. He reported that he started to drink since discharge and spent 5 years drunk all the time, which strained his marriage. Until about 3 years ago, the Veteran would go on drinking binges that lasted from 2 weeks to 2 months. The Veteran reported that to this day, he drank a couple of bottles of scotch throughout the week. The Veteran reported sleep difficulties due to neuropathy pain in his hand and other physical discomfort. He had a bad dream or nightmare about military related traumas about twice per week. Since about the past year, however, the Veteran reported that he was waking up before the dream developed. There was no hallucination. The Veteran had no inappropriate behavior, no obsessive or ritualistic behavior, no panic attacks, and no homicidal thoughts. He did report having suicidal thoughts, but denied that he would ever carry them out. The examiner observed that he had no physical difficulty in performing activities of daily living, however, he did have emotional barriers to personal care. His remote memory was found normal, recent memory mildly impaired, and immediate memory normal. The Veteran exhibited efforts to avoid thought, feelings, or conversations associated with the trauma as well as efforts to avoid activities, places, or people that arouse recollections of the trauma. The Veteran showed markedly diminished interest or participation in significant activities. The Veteran was diagnosed with PTSD, depressive disorder, and alcohol dependence with symptoms of nightmares, sleep impairment, and avoidance of trauma reminders (for PTSD); crying spells, loss of interest in activities, and loss of interest in his appearance (for depression). It was noted that PTSD with accompanying alcohol abuse could lead to depressive symptoms. GAF of 60 was assigned. The examiner found that there was occasional decrease in work efficiency and there were intermittent periods of inability to perform occupational tasks due to PTSD signs and symptoms, but with generally satisfactory functioning. The examiner stated that impaired sleep, irritability, and angry outbursts, and alcohol dependence all affect occupational performance. Further, the examiner noted that there was no significant change in level of functional impairment since the last November 2009 VA examination. Numerous lay statements submitted by the Veteran or the appellant corroborate the findings summarized in the above examinations. His personality change, problems with use of alcohol, crying spells, nightmares, avoidance of trauma reminders, relationship problems, and deteriorating quality of life over the years are commonly mentioned in those statements. See, e.g., November 2012 his sister's statement; November 2012 his nurse-counselor statement; November 2012 his long-time friend statement; November 2012 his pastor statement; and November 2012 the appellant statement. Based on a review of the evidence of record, the Board finds, with resolution of doubt in his favor, that the Veteran's PTSD symptomatology more nearly approximates the 70 percent criteria since August 18, 2008, the date of filing the claim for service connection, because the record summarized above indicates that during this period, he suffered from suicidal ideation; near-continuous depression affecting his ability to function independently, appropriately, and effectively; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships, resulting in occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. Here, the evidence demonstrated that throughout the entire appeal period, the Veteran had suicidal ideation with one particular occasion where he did initiate the action, though he did not complete it. His PTSD affected his relationship with his spouse and children as well as his friends and supervisors/coworkers. His use of alcohol to self-medicate and inhibition to seek treatment for his psychiatric condition suggest that he was not able to adapt to stressful circumstances. He was unable to establish and maintain effective relationships due to his avoidance symptom. The evidence of record indicates that he was not comfortable with speaking about his psychiatric problems even with mental health professionals for a long time, and thus, it is hard to determine the actual progression of his psychiatric condition over the years. However, the record indicates that his psychiatric health deteriorated since he was let go in 2008 from the last full-time employment by isolating himself even more from his family and friends. See, e.g., March 2011 VA examination. Further, the March 2011 examiner opined that the Veteran's functional impairment due to PTSD has not significantly changed from the November 2009 examination. Resolving the reasonable doubt in favor of the Veteran, the Board finds that the Veteran is entitled to an evaluation of 70 percent since August 18, 2008. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017); 38 U.S.C. § 5107 (2012) ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, the Veteran's symptomatology does not meet the criteria for the 100 percent disabling at any time during the appeal period. The evidence shows that the Veteran had no hallucinations, gross impairment in thought process or communication, persistent delusions or hallucinations, or grossly inappropriate behavior. Further, the medical records on file demonstrate that the Veteran did not suffer from disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. In conclusion, the evidence demonstrates that it is as likely as not that the Veteran's PTSD symptoms are fully and appropriately addressed by the criteria for a 70 percent rating, but there is no suggestion that the Veteran suffered from most of the symptoms listed in the 100 percent criterion. Therefore, a 100 percent rating for PTSD is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). III. TDIU Total disability ratings for compensation 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. Marginal employment is not considered substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16 (a). Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. 38 C.F.R. § 4.16 (a). Here, the Veteran's service-connected PTSD is now rated at 70 percent disabling since August 18, 2008. The schedular eligibility thresholds are met. He had other service connected disorders related to diabetes at this time as well. The evidence of record indicates that the Veteran worked as a salesman for a bread company from 1969 to 1986, as a licensed pastor at a church assisting with education and music from 1986 to 2004, and as a facility manager at a franchise restaurant from 2004 to 2008. See November 2009 VA examination. In the March 2011 VA examination, the Veteran stated that the church job ended due to interpersonal conflict resulting in the lapse of his pastor license. The Veteran elaborated during the examination that the pastor would not support renewal of the Veteran's pastor's license due to a relationship issue; the Veteran indicated that he had had disagreements in the past and he called the pastor names and became angry with him. The Board finds that this incident indicates that the Veteran's PTSD symptoms had been impacting his ability to maintain workable interpersonal relationships in the work setting toward the end of his work at the church. Moreover, since he was let go from manager job in 2008, the record indicates that the Veteran's isolation from people and activities had become worse. Indeed, the Veteran reported in March 2011 VA mental health initial evaluation that he was unable to have gainful employment due to his current medical problems and emotional symptoms. See March 2011 mental health initial evaluation note. Therefore, resolving the reasonable doubts in the Veteran's favor, the Board finds that the Veteran had become unable to secure or follow a substantially gainful occupation as a result of PTSD symptoms by the time the Veteran filed the service connection claim for PTSD in August 18, 2008. Accordingly, entitlement to TDIU for the period since August 18, 2008, is warranted. ORDER An increased 70 percent rating for PTSD prior to March 10, 2011, but no higher is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to TDIU since August 18, 2008, is granted, subject to the law and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs