Citation Nr: 1827652 Decision Date: 05/02/18 Archive Date: 05/14/18 DOCKET NO. 11-25 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent prior to July 27, 2015 and 50 percent thereafter for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD P. Lopez, Associate Counsel INTRODUCTION The Veteran had active military service from February 1966 to February 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which granted service connection for PTSD and assigned a 30 percent rating, effective June 30, 2008. Thereafter, in a July 2015 rating decision, the RO increased the rating for PTSD to 50 percent, effective July 27, 2015. The Veteran testified before the undersigned at a Board videoconference hearing in January 2016. A transcript of the hearing has been reviewed and associated with the claims file. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms of a nature and severity most nearly approximating those contemplated by a 70 percent disability rating. 2. For the entire appeal period, the Veteran's PTSD did not result in total social and occupational impairment. 3. The weight of the evidence is against a finding that Veteran's PTSD is of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 70 percent disability rating, but no higher, for PTSD have been met. 38 U.S.C.A. § 1155 (West 2016); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for an initial rating in excess of 70 percent have not been met. 38 U.S.C.A. § 1155 (West 2016); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2017). 3. The criteria for an award of TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2016); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veteran's appeal proceeds from the initial rating assigned for his PTSD. This is a downstream element from the grant of service connection, and there is no argument of prejudice from any notice defects. No further notice is required for the issue of a higher rating for PTSD. As for the issue of entitlement to a TDIU, VA notified the Veteran of the evidence required to support his claim in March 2017. All identified, pertinent treatment records have been obtained and considered. Pursuant to the Board's March 2016 remand, VA contacted the Social Security Administration (SSA) to obtain any available records. A March 2017 response indicates that the SSA does not have medical records relating to the Veteran. The Veteran underwent VA examinations in March 2009 and July 2015. There is no argument or indication that these examinations are inadequate or that their findings do not reflect the current nature or severity of the Veteran's PTSD. In sum, there is no additional notice or assistance that would be reasonably likely to aid in substantiating the Veteran's claim. Any errors committed were not harmful to the essential fairness of the proceedings, and the Veteran will not be prejudiced by a decision. II. Analysis Increased Rating for PTSD The Veteran's PTSD is currently rated as 30 percent disabling prior to July 27, 2015 and as 50 percent disabling from that date forward. He seeks higher ratings.. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155. Where there is a question as to which of two evaluations shall be applied, 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this instance, staged ratings were assigned for the Veteran's major depressive disorder, at 30 percent and 70 percent, respectively. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: 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), is assigned a 30 percent rating. Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, is assigned a 50 percent rating. 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 worklike setting); inability to establish and maintain effective relationships, is assigned a 70 percent rating. 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, is assigned a 100 percent rating. 38 C.F.R. § 4.130. The Board acknowledges that psychiatric examinations frequently include assignment of a global assessment of functioning (GAF) score. The American Psychiatric Association has released the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5), and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In Golden v. Shulkin, No. 16-1208, 2018 U.S. App. Vet. Claims LEXIS 202, at *9 (Vet. App. Feb. 23, 2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. This appeal was originally certified to the Board in October 2015, so it was pending before the AOJ on August 4, 2014. As such, the DSM-5 applies and the GAF scores will not be considered. *** The Board notes that his appeal stems from a claim received in June 2008. VA treatment records reflect that the Veteran sought mental health treatment in May 2008. See 08/04/2008, Medical Treatment Record - Government Facility, at 3. He briefly underwent group psychotherapy in June and July 2008. Id. at 2 & 3. (At his Board hearing, the Veteran stated that he stopped attending group therapy because it actually made him feel worst.) The relevant treatment notes show diagnoses of PTSD (described as chronic in July 2008) and depression. A March 2009 VA examination shows a finding of mild social and occupational impairment, based on occasional decrease in work efficiency with intermittent periods of inability to perform occupational tasks due to PTSD symptoms (to include irritability and sleep disturbance), but with generally satisfactory functioning. As noted by the examiner, the Veteran's PTSD also resulted in decreased concentration; on mental examination, his short-term memory was mildly impaired. At the time, the Veteran was employed full-time as a loan officer. He denied any current social relationships, or activities and leisure pursuits. In his February 2010 notice of disagreement, the Veteran stated that his PTSD was affecting his employment. 02/26/2010, NOD. In detail, he reported problems dealing with the public, as he got angry or agitated, and problems understanding written instructions. Id. Along with the notice of disagreement, the Veteran submitted two employee counseling forms, allegedly from his employee at the time. See 02/26/2010, Third Party Correspondences. The Board notes that the handwriting in these forms appears to match the handwriting in a subsequent statement submitted by the Veteran. See 10/26/2011, Form 9. As such, the Board will accept this submission as a statement from the Veteran. In essence, these statements indicate that the Veteran had become difficult to work with, that his work quality had diminished, that he had constant mood swings with verbal abuse, and that he was the object of complaints from both customers and co-workers. In an October 2011 statement, the Veteran indicated that he had been experiencing significant mental challenges that had negatively impacted work-related and social activities. He recalled a job experience as a manager of a fast-food restaurant, in which his explosive personality resulted in confrontations with customers. He recounted having gone through several robbery attempts in which his life was threatened, including one in which he confronted and disarmed the robber. He also reported difficulty understanding the complex instructions associated with automation tools and computer software. He also related his experiences working as manager of a quick loan store, where he had confrontations with employees and again went through a robbery where he confronted and disarmed the robber. He acknowledged that by reacting this way he was violating company policy of showing no resistance. He further admitted that at least one person was injured due to his recklessness. As to his interpersonal relationships, the Veteran stated he was distant from his extended family and that his personality had become flat. He acknowledged that his behavior is a source of fear and concern for his grandchildren. He also reported that he sometimes got lost and arrived at places but does not remember why he is there. He added that his memory is bad. A July 2015 VA examination shows a finding of 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 Veteran remained divorced, but reported an off-and-in relationship with his first wife, who is the mother of his daughter. They had been living together for over 15 years, but maintained separate bedrooms. The Veteran indicated that they do not have a relationship and that they get into arguments whenever they need to talk. It was noted that the Veteran has one adult daughter and two grandchildren (ages 18 and 11 at the time). The Veteran stated that his grandchildren do not like to be around him. He described his daughter as the only person he gets along with or really cares about. He seldom talked with a brother who lived in the same area, but had near daily communication with his sisters. He had a few friends from his school years. They initiate communication with him; he does not like chit-chat. The Veteran denied any current hobbies or interests. At the time, he was not working, having last worked seven years earlier, after being fired. Post-service employment included work in the fast-food and pay-day loan industries. The Veteran indicated that he was easily irritable and often had heated arguments. With regard to PTSD symptoms, the Veteran reported intermittent intrusive recollections of Vietnam, avoidance of crowds, and self-isolation. At his January 2016 Board hearing, the Veteran reported that he does not have a social life and that he does not want to be around people, including family. According to the Veteran, his daughter limits his contact with his grandchildren because she does not like the way in which the Veteran talks to them. He reported last working six or seven years earlier, when he was discharged for insubordination and confrontation. He had not sought any other employment since then. In May 2017, the Veteran submitted a three-page statement from an adult nephew, who identified himself as a branch chief at the Social Security Administration. In essence, the nephew endorsed that the Veteran has no friends, that he is quick-tempered and disrespectful; that romantic and casual relationships are made impossible by constant verbal and physical abuse, that he is a threat to himself and others around him. The nephew recounted the incident where the Veteran confronted a robber, endangering his life and the lives of others. He also recalled an incident where the Veteran made a rude remark directed at a grocery store employee that, in the Veteran's mind, was Vietnamese. *** Based on the evidence above, and resolving any doubt in the Veteran's favor, the Board finds that the Veteran's PTSD meets the criteria for a rating of 70 percent for the entire appeal period. In detail, the Board finds that the Veteran's PTSD results in occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood, due to symptoms such as impaired impulse control, spatial disorientation, difficulty in adapting to stressful circumstances, and an inability to establish and maintain relationships. As discussed above, the Veteran has a long history of reckless behavior, to include confronting would-be robbers in circumstances where his behavior endangered his life and the lives of others. The evidence also establishes that the Veteran isolates himself, to include from his family. There is also indication that the Veteran is prone to verbal abuse. Further, his mood deficiencies have resulted in his grandchildren not wanting or not being allowed to spend time with him. The Board finds that he that these symptoms approximate the criteria for a rating of 70 percent. The next-higher 100 percent rating for a mental health disability is assigned where there is total occupational and social impairment. A review of the evidence of record does not show that the Veteran's PTSD has resulted in total occupational and social impairment at any point during the period on appeal. The Board has considered all of the evidence of record, particularly, that set forth above, and finds that entitlement to a 100 percent disability rating for PTSD is not warranted. The Board acknowledges that the Veteran's PTSD has been manifested by severe symptoms that have interfered with the Veteran's social and occupational functioning, but notes that this level of impairment is reflected by the 70 percent disability rating already assigned. At no point in the appeal period was the Veteran's impairment described as total with respect to either social or occupational functioning. Notably, the Veteran's symptoms have not included gross impairment in thinking or communications, delusions or hallucinations, grossly inappropriate behavior, danger to himself or others, severe disorientation, severe memory loss, or intermittent inability to perform activities of daily living. While the above-noted symptoms listed in the rating criteria are not determinative or controlling, as opposed to the Veteran's level of functioning, see Mauerhan v. Principi, 16 Vet. App. 436 (2002), the record does not show that the Veteran's level of functioning was one of total impairment. Although the Veteran is divorced, the evidence establishes that he has been living with his first wife. He also reported a relatively good relationship with his daughter. He is also in communication with his sisters, who check up on him. Although limited, he also has a relationship with his two grandchildren. In sum, the Veteran's disability picture for the relevant period of time is best described as one of significant impairment in social and occupational functioning, rather than total impairment. As such, the Board finds that a 100 percent disability rating is not warranted under 38 C.F.R. § 4.130. TDIU The issue of entitlement to a TDIU has been raised by the record. A total disability rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). As discussed above, the Board has assigned a 70 percent rating for PTSD. This rating satisfies the percentage requirements of 38 C.F.R. § 4.16(a). Therefore, the Veteran meets the criteria for consideration for entitlement to TDIU on a schedular basis. Even so, for a TDIU to be warranted, it must be found that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected PTSD. (The Veteran is not service-connected for any other disability.) Consequently, the Board must determine whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19 (2014). In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. A May 2017 TDIU application is silent for the date in which the Veteran last worked. Nonetheless, the July 2015 VA examination notes that he last worked approximately seven years prior to the examination. At his January 2016 Board hearing, the Veteran reported that he had not worked full-time in the past six to seven years. The March 2009 VA examination reflects that the Veteran was employed full-time at the time. Similarly, his February 2010 notice of disagreement and associated statements suggests that he was still employed on that date. However, his September 2011 substantive appeal suggests that the Veteran had been demoted, gotten into an argument with a manager, and left the job. Based on the evidence above, the Board finds that the Veteran stopped working sometime between February 2010 and September 2011. Nevertheless, after having reviewed the relevant evidence (summarized above), the Board finds that the weight of the evidence is against a finding that the Veteran's PTSD, in and of itself, prevent him from securing or following substantially gainful employment. The evidence clearly establishes that the Veteran's PTSD resulted in deficiencies at work. The evidence also establishes that at least one of his employers (a fast food restaurant, where the Veteran was a store manager) actually took advantage of his PTSD by transferring him to locations with poor employee performance or in neighborhood with high crime activity. See 10/26/2011, Correspondence. Clearly, such work conditions can only exacerbate the Veteran's PTSD symptoms. However, the weight of the evidence fails to establish that the Veteran's PTSD precludes him from working in a different line of work or work setting, for instance, working in a stress free environment with minimal social interaction and no managerial duties. Similarly, while the evidence establishes that the Veteran's PTSD results in decreased concentration and memory issues, the weight of the evidence fails to establish that the Veteran's mental capacity is so diminished by his PTSD so as to render him totally unemployable. In this regard, the most recent July 2015 VA examination shows that, on mental examination, the Veteran's speech was unremarkable and without noticeable word finding difficulty; speed of thinking and responding was within normal limits; thought processes were logical and goal directed; there was no over evidence of mental content symptomatology, perceptual disturbance, or gross cognitive confusion; and insight and judgment appeared adequate. Finally, the Board notes that the Veteran has reported two years of college education. As already mentioned, the evidence establishes that he has held positions with managerial duties. This suggests that the Veteran had the mental tools to manage a store. There is no indication that he has lost those mental tools due to PTSD. As such, the Board finds that the Veteran's PTSD, in and of itself, is not of such severity so as to render him totally unemployable. As the criteria for entitlement to a TDIU have not been met, the claim must be denied. ORDER Entitlement to an initial rating of 70 percent for PTSD is granted. Entitlement to a TDIU is denied. ______________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs