Citation Nr: 18116166 Decision Date: 07/05/18 Archive Date: 07/05/18 DOCKET NO. 02-14 158 DATE: July 5, 2018 ORDER Entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) prior to May 6, 2016, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an increased rating higher than 70 percent for PTSD, effective from May 6, 2016, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, effective January 3, 2011, is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, effective for the entire appeal, i.e., since April 24, 1997, the Veteran’s PTSD has resulted in occupational and social impairment with deficiencies in most areas, such as work and mood, due to such symptoms as some suicidal ideation, and difficulty in adapting to stressful circumstances; but has not resulted in total occupational and social impairment. 2. The Veteran’s service-connected disabilities preclude him from securing and following substantially gainful employment from January 3, 2011. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 70 percent for PTSD, but no higher, effective April 24, 1997, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for an evaluation higher than 70 percent for PTSD, effective from May 6, 2016, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to a TDIU are met, effective January 3, 2011. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341(a), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In August 2016, the Board, in pertinent part, denied an increased rating higher than 50 percent for the Veteran’s PTSD, effective April 24, 1997; and granted an increased rating of 70 percent, effective May 6, 2016. The issue of entitlement to a TDIU from January 3, 2011 was remanded for further consideration. The Veteran appealed the Board’s August 2016 decision to the U.S. Court of Appeals for Veterans Claims (Court) insofar as it denied an increased rating higher than 50 percent for PTSD, effective prior to May 6, 2016, and did not grant a rating higher than 70 percent, effective thereafter. In an October 2017 memorandum decision, the Court vacated the Board’s August 2016 decision that denied a rating higher than 50 percent for PTSD prior to May 6, 2016, and a rating higher than 70 percent, effective May 6, 2016. The Court essentially found that the Board had not provided an adequate reasons and bases for determining that the Veteran’s PTSD symptoms worsened in May 6, 2016, based on medical evidence suggesting that the symptoms persisted for many years prior to the date of the May 6, 2016 medical record. The Court specifically noted that the issue of entitlement to a TDIU prior to January 3, 2011 had been abandoned and was dismissed. The case is now returned for appellate review. 1. Entitlement to an increased rating higher than 50 percent for posttraumatic stress disorder (PTSD) prior to May 6, 2016; and higher than 70 percent, thereafter The Veteran contends that his PTSD symptoms are more severe than warranted for a 50 percent rating for PTSD for the period prior to May 6, 2016; and higher than 70 percent, thereafter. The Veteran’s representative asserts that the Veteran should receive at least a higher rating of 70 percent for his PTSD based on his irritability, suicidal ideation, continuous panic and depression, problems with memory and concentration, and severe sleep impairment. The Board concludes that the Veteran’s PTSD warranted a 70 percent rating effective prior to May 6, 2016 (i.e., April 24, 1997, the effective date of service connection for PTSD). Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. As noted, the Veteran’s PTSD is presently rated as 50 percent disabling, effective April 24, 1997, and 70 percent effective May 6, 2016. The criteria for evaluating PTSD are found at 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation is assigned when there is 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; disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is 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); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the VA’s general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The nomenclature employed in the rating formula is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-5). See 38 C.F.R. § 4.130. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities that addressed mental disorders to remove outdated references to the DSM and to replace them with references to the recently updated DSM-5. The provisions of the interim final rule applied to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after August 4, 2014. The Secretary did not intend for the provisions of the interim final rule to apply to claims that had been already certified for appeal to the Board, or that were pending before the Board, the Court, or the United States Court of Appeals for the Federal Circuit. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The Veteran’s case was originally certified to the Board in March 2012, prior to the rule promulgated by the Secretary and becoming effective in August 2014. Since the Secretary did not intend for the DSM-5 to apply in pending cases, the DSM-5 does not apply to the present case. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the veteran’s capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126(b). Within the DSM-IV, Global Assessment Functioning (GAF) scale scores ranging from 1 to 100, reflect “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). The medical evidence is conflicting as to the severity of the Veteran’s PTSD. The Board will resolve all doubt in the Veteran’s favor and assign a 70 percent evaluation for the entire appeal period, i.e., since April 24, 1997. Overall, he is shown to have deficiencies in most areas. Socially, VA treatment records dated in June 1996 to 1997 show the Veteran reported a lack of emotions and connections to others except for his wife and children. He also reported increased anxiety, intrusive thoughts, panic, arousal, and anger, and decreased sleep. On a VA special psychological evaluation in June 1997, the Veteran reported that he had been married for 23 years with three children, and tried to stay busy around the house. He noted that he had been a very tense person since discharge and had a bad temper and would blow up very quickly with little provocation. He did not display much emption on mental status evaluation. His GAF score was 60. A July 1997 VA examination report noted that the Veteran indicated that he did not get along with his wife and argued with her. He stated that he was unable to show any affection toward her and felt distant from her. He noted that he had no friends, no emotions, and felt lonely and sad. His GAF score was 80. A January 2000 VA treatment record notes that the Veteran complained of emotional distress, feeling unsafe, and experienced difficulty getting along with others. He denied any suicidal or homicidal ideation but reported a fear of losing control at some time in the future, if he was not mindful of his coping skills for anger management. The counseling therapist indicated that the Veteran struggled with severe, chronic PTSD symptoms, especially intrusive thoughts, nightmares, sleep disturbance, irritability, difficulty with focus and concentration on the job, and affective numbing. Treatment records dated from May 2000 to March 2005 note GAF scores of 45 and ongoing treatment for severe symptoms. It was noted in May 2000 that the frequency and intensity of his PTSD symptoms seriously impaired his quality of life. A July 2003 letter from mental health providers notes that the Veteran’s PTSD symptoms seriously impaired him socially. In a January 2009 statement, the Veteran stated that he continued to receive therapy and medication, and that before he started therapy he had a very short temper and suffered from depression. He said he did not want friends mostly because he did not trust them, and did not like outside members of his family involved with his family. On VA examination in August 2009, the Veteran reported irritability being around other people and angry outbursts. He had never made any suicide attempts but did report having occasional suicidal ideation. He had been married since 1975 and had three adult children. He reported that his relationship with two of his children was very positive, but he struggled with his youngest daughter. The examiner administered objective testing, however, and found that based on the data available, there had been no negative impact on his social functioning that could be attributed to his experience in Vietnam. The Veteran underwent another VA examination in March 2010. The Veteran complained of difficulty being around other people, preferring to isolate. He had no friends, but talked very highly about his family, which included his wife and three children. Subsequent VA examinations and treatment records dated from March 2010 to February 2015 note that the Veteran had communication problems with his wife, some problems with anxiety, with no homicidal or suicidal ideations. The GAF score range was from 50 to 70. A July 2015 VA examination report shows the Veteran had inability to establish and maintain effective relationships. He got along with his wife but he isolated himself, and she complained about their lack of activities or social life. When asked about suicidal thoughts, he stated that every now and then it comes and goes but he had never tried. He described a pervasive suspiciousness about other people. A May 2016 private treatment record notes that the Veteran had chronic PTSD with severe symptoms and severe functional impairment. It was noted that although the Veteran and his wife had stayed together for many years, the quality of their relationship suffered due to his emotional detachment and lack of emotional intimacy and the “extreme social isolation” in which they lived. Socially, the record shows isolation from others, except for his wife and children, inability to show emotional closeness in even his close relationships, some findings of passive suicidal ideation, and difficulty adapting to stressful situations. The U.S. Court of Appeals for Veterans Claims held in Bankhead v. Shulkin, 29 Vet. App. 10 (2017), that the term “suicidal ideation” in the 70 percent criteria for mental disorders (38 § 4.130) encompassed even passive suicidal ideation without intent or plan. Moreover, not all the criteria for a 70 percent rating for PTSD must be present, to be compensated at the 70 percent disability rating level. See Vazquez-Claudio, 713 F.3d 116-17 (noting that the intermediate disability evaluations are distinguished not only by symptoms, but also by the frequency, severity, and duration of the symptoms); Mauerhan, 16 Vet. App. at 442. With respect to employment, the Veteran retired from employment in January 2011, and then continued to work on a part-time basis after that. VA treatment records dated from 1997 to 2010 show the Veteran reported struggling with authority figures at his job, as well as increased stress, and difficulty with concentration and focus on his job. A May 2000 letter from mental health provides notes that the Veteran’s PTSD symptoms were chronic, very severe, and seriously interfered with his ability to maintain satisfactory employment. He had difficulty getting along with his co-workers and authority figures at work. It also was noted that the frequency and intensity of his PTSD symptoms seriously impaired his capacity for adequate functioning on his job. A March 2005 letter from mental health providers noted that despite his employment status, the Veteran’s PTSD symptoms seriously impaired his performance at work. In August 2009, a VA examination report notes that the Veteran got along with his co-workers but always had an adversarial relationship with his supervisors. It was noted, however, that the Veteran could function well at work and that his PTSD symptoms did not affect his work performance. VA treatment records dated from 2010 to 2014 note ongoing findings of some occupational impairment. The Veteran retired in 2011. A January 2014 VA treatment record notes that the Veteran had reported increased depression since his retirement. He worked part-time to keep busy. A January 2015 VA examination report noted that the Veteran had retired from his job as a postal carrier about five years ago. He indicated that he had daily arguments with his managers who he said did not like him as a worker, when he refused to do extra work. He avoided relationships with his co-workers and hardly saw anyone else while there. The examiner noted that the Veteran had difficulty in establishing and maintaining effective work relationships. In June 2016, a private psychological assessment noted that the Veteran’s impairment in interacting with supervisors and co-workers significantly affected his workplace functioning and likely harmed his career advancement. It was determined that the Veteran’s PTSD and functional impairment would render him unable to be gainfully employed in many workplace settings, and would cause marked interference with his ability to work in virtually all workplace settings. It was noted that the Veteran’s intrusive thoughts, concentration problems, and hypervigilance to perceived potential threats would distract him enough to result in workplace errors and otherwise harm his job performance for all but the very simplest of tasks. It was determined that the Veteran’s avoidance/ isolation behavior, mistrust of others, and irritability and anger outbursts would prevent him from developing and maintaining healthy workplace relationships with co-workers and supervisors and from being able to function effectively as part of a team. Review of the medical evidence shows occupational and social impairment with deficiencies in most areas, such as work and mood, due to such symptoms as some suicidal ideation, and difficulty in adapting to stressful circumstances, which is consistent with a 70 percent rating under Diagnostic Code 9411. The Veteran’s GAF score range 45 to 80 demonstrates a relatively wide range indicating slight impairment to serious symptoms. DSM-IV at 46-47. The GAF scores do not undermine the assessment of a 70 percent rating being the most appropriate for the Veteran’s PTSD symptoms. While the medical evidence since April 24, 1997, shows occupational and social impairment with deficiencies in most areas, the medical evidence does not show total occupational and social impairment. The Veteran has been severely occupationally and socially impaired due to his history of suicidal ideation and difficulty adapting to stressful situations. However, to warrant a 100 percent rating for PTSD, the medical evidence must show total occupational and social impairment. Socially, while the Veteran has a history of suicidal ideation, he has never been found to be in persistent danger of hurting himself or others. He isolates from others, and has trouble emotionally connecting with his family, but he has had a relationship with his wife for many years and has maintained a relationship with his children. Therefore, the evidence does not rise to the level of a total disability rating for his PTSD effective April 24, 1997. Considering the foregoing, the Board concludes that a higher rating of 70 percent, but no higher, for the Veteran’s PTSD is warranted, effective April 24, 1997. The benefit-of-the-doubt rule has been applied in arriving at this decision. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has also considered whether the Veteran’s PTSD presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that an extraschedular rating is warranted, the threshold factor for extraschedular consideration. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (“[R]ating schedule will apply unless there are ‘exceptional or unusual’ factors which render application of the schedule impractical.”). In the instant case, the Veteran has severe social and occupational functional impairment due to his symptoms of PTSD. However, this does not present an exceptional or unusual disability picture, and the assigned schedular evaluation is, therefore, adequate. See Thun, 22 Vet. App. at 115. The symptoms associated with the Veteran’s PTSD (i.e., occupational and social impairment with deficiencies in most areas, such as work, judgment, and/or mood) are not shown to cause any impairment that is not already contemplated by the rating criteria. The 70 percent rating assigned under Diagnostic Code 9411 specifically contemplates these symptoms. The Board finds that the rating criteria reasonably describe the Veteran’s disability. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from January 3, 2011 Because of the Board’s decision, herein, the Veteran meets the schedular requirements for a TDIU, effective January 3, 2011, the date he reportedly stopped working on a full-time basis. He filed his formal TDIU claim in February 2017. Specifically, he had at least one disability rated at least 40 percent disabling or higher, e.g., his PTSD, because of this Board decision, rated 70 percent from April 24, 1997. He also had a combined rating of 70 percent, including the 70 percent rating in effect for PTSD, from April 24, 1997. See 38 C.F.R. § 4.16(a) Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more, or (2) as a result of two or more disabilities, provided 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. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by non-service- connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran reportedly continued to work on a part-time basis after his retirement on January 3, 2011. However, none of his employment can be considered gainful employment, as his salary did not rise above the poverty thresholds for the years 2013 to 2016. As noted in the previous section, in June 2016, a private psychological assessment noted that the Veteran’s PTSD and functional impairment would render him unable to be gainfully employed in many workplace settings, and would cause marked interference with his ability to work in virtually all workplace settings. It was noted that the Veteran’s intrusive thoughts, concentration problems, and hypervigilance to perceived potential threats would distract him enough to result in workplace errors and otherwise harm his job performance for all but the very simplest of tasks. It was determined that the Veteran’s avoidance/ isolation behavior, mistrust of others, and irritability and anger outbursts would prevent him from developing and maintaining healthy workplace relationships with co-workers and supervisors and from being able to function effectively as part of a team. The Board resolves all doubt in the Veteran’s favor in concluding that the Veteran’s current service-connected disabilities render him unemployable. Therefore, entitlement to a TDIU is established, effective January 3, 2011. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah B. Richmond