Citation Nr: 18136455 Decision Date: 09/19/18 Archive Date: 09/18/18 DOCKET NO. 04-38 023A DATE: September 19, 2018 ORDER Entitlement to an evaluation of 70 percent disabling from March 3, 1977 to January 21, 1979 and from February 16, 1979 to July 26, 1994 for posttraumatic stress disorder (PTSD) is granted; entitlement to an evaluation in excess of 70 percent disabling from March 3, 1977 to January 21, 1979 and from February 16, 1979 to February 28, 1989 is denied. REMANDED Entitlement to an evaluation in excess of 70 percent disabling from March 1, 1989 to July 26, 1994 for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from March 3, 1977 to January 21, 1979 and from February 16, 1979 to February 28, 1989 is remanded. FINDING OF FACT After resolving reasonable doubt in the Veteran’s favor, his PTSD manifested in a severely impaired ability to establish and maintain effective or favorable relationships with people and severe impairment in the ability to obtain or retain employment, but from March 3, 1977 to January 21, 1979 and from February 16, 1979 to February 28, 1989, his symptoms were not totally incapacitating and he was not demonstrably unable to obtain or retain employment. CONCLUSION OF LAW The criteria for entitlement to an evaluation of 70 disabling from March 3, 1977 to January 21, 1979 and from February 16, 1979 to July 26, 1994 for PTSD have been met; the criteria for entitlement to an evaluation in excess of 70 percent disabling from March 3, 1977 to January 21, 1979 and from February 16, 1979 to February 28, 1989 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.132, Diagnostic Code (Code) 9410 (1976), 9411 (1987, 1994). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1963 to August 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA). The Veteran was awarded a 100 percent evaluation for his PTSD prior to March 2, 1977 and from July 27, 1994. He was also awarded a temporary total evaluation from January 22, 1979 to February 15, 1979 pursuant to 38 C.F.R. § 4.29. See April 2014 rating decision. Because the Veteran cannot receive a rating in excess of 100 percent disabling, those periods are not before the Board. The record reflects that the Veteran’s service-connected disabilities may have prevented him from securing and following substantially gainful employment during the appeal period. See November 2002 statement. Because a TDIU rating is inherent in any claim for an increased rating, see Rice v. Shinseki, 22 Vet. App. 447 (2009), it has been added as an issue. As discussed below, the appeal period for TDIU has been limited to from March 3, 1977 to January 21, 1979 and from February 16, 1979 to February 28, 1989, due to the provisions of 38 C.F.R. § 4.16(c) (effective March 1, 1989). Entitlement to an evaluation in excess of 10 percent disabling from March 3, 1977 to January 21, 1979 and from February 16, 1979 to July 26, 1994 for PTSD. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App, 119 (1999). Initially, the Board notes that the schedular criteria for mental disorders were amended during the appeal period, effective February 3, 1988. Additionally, the Code for PTSD was added, effective April 11, 1980. See 45 Fed. Reg. 26327 (April 11, 1980). Where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria and, should an increased rating be warranted under revised criteria, that award may not be made effective before the effective date of the change. Prior to February 3, 1988, the schedular criteria for psychoneurotic disorders provided for a 100 percent rating when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; when the individual had totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavior processes associated with almost all daily activities such as “phantasy,” confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior; and when the individual is demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Code 9410 (1976), Code 9411 (1987). A 70 percent rating is warranted when the ability to establish and maintain effective or favorable relationships with people is seriously impaired; the psychoneurotic symptoms are of such severity and persistence that there is pronounced impairment in the ability to obtain or retain employment. Id. A 50 percent rating is warranted when the ability to establish or maintain effective or favorable relationships with people is substantially impaired; by reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in severe industrial impairment. Id. A 30 percent rating is warranted when there is definite impairment in the ability to establish or maintain effective and wholesome relationships with people; the psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce considerable industrial impairment. Id. A 10 percent rating is warranted when the symptoms manifested were less than the criteria for the 30 percent rating, with emotional tension or other evidence of anxiety productive of moderate social and industrial impairment. Id. As previously mentioned, the criteria for evaluating mental disorders changed on February 3, 1988. However, in a January 1988 Federal Register Notice, VA noted that the changes to the rating criteria were “not intended to increase or reduce evaluations of mental disorders, but [rather were] designed to reflect consistency in describing social and industrial impairment in each of the categories of mental disorders.” See 53 Fed. Reg. 21 (January 4, 1988). From February 3, 1988, the criteria for a 100 percent rating did not change from the pre-February 3, 1988 criteria (except to change the spelling of “phantasy” to “fantasy”). 38 C.F.R. § 4.132, Code 9411 (1994). A 70 percent rating is warranted when the Veteran’s ability to establish and maintain effective or favorable relationships with people was severely impaired, and the psychoneurotic symptoms were of such severity and persistence that there was a severe impairment in the ability to obtain or retain employment. Id. A 50 percent rating is warranted when the Veteran’s ability to establish or maintain effective or favorable relationships with people was considerably impaired, and, by reason of psychoneurotic symptoms, the reliability, flexibility, and efficiency levels were so reduced as to result in considerable industrial impairment. Id. A 30 percent rating is warranted for definite impairment in the ability to establish or maintain effective and wholesome relationships with people. The psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. Id. A 10 percent rating is warranted when the symptoms manifested were less than the criteria for a 30 percent rating, with emotional tension or other evidence of anxiety productive of moderate social and industrial impairment. Id. Under the criteria before and after February 3, 1988, social impairment per se will not be used as the sole basis for any specific percentage evaluation, but is of value only in substantiating the degree of disability based on all the findings. Id., Note (1) (1976, 1994). As relevant to this case, the DSM-5 states that it was recommended that the use of Global Assessment of Functioning (GAF) scores be dropped for several reasons, including their conceptual lack of clarity and questionable psychometrics in routine practice. The Board recognizes the Court’s holding in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) regarding the importance of GAF scores, however, as the medical community has determined that GAF scores are an unreliable measure of a psychiatric disability, the Board assigns any GAF scores mentioned in the record no probative value, and so will not discuss them specifically. See also Golden v. Shulkin, 29 Vet. App. 221 (2018). Factual Background and Analysis The Veteran stated that his PTSD could not have been in full remission after his hospitalization discharge in 1977 (the start of the appeal period) if he was later hospitalized in 1979. See June 2014 notice of disagreement. March 1977 hospital discharge records reflect the Veteran had a diagnosis of schizophrenia type, with suicidal tendencies. He was well-kept and groomed, articulate, coherent, and relevant. He was not obsessed, hallucinated or deluded. He had a fair ability to abstract and a good fund of information. He had a good memory and was neither elated nor depressed. He was not suicidal or homicidal. He had good judgment and fair insight. See March 1977 VA treatment records. Records from later that month reflect testing did not suggest the presence of a psychosis, but rather a character disorder. The severity of the Veteran’s mental disorder was not discussed. See March 1977 government records. February 1979 hospitalization discharge records reflect the Veteran had delusions prior to his admittance, believed someone was out to harm him, and was not eating or sleeping well. He had a history of hallucinations and delusions, and reported he had not been on medications for a year. He initially was very confused and disoriented, and requested to be placed on restricted section. Medications were evaluated and adjusted, and he progressed slowly but continued to be suspicious and exhibit flat affect. Later he was anxious for discharge and said he felt comfortable on his medication. He stated he would try to stay on a job where the pressure was not too great, and stay on his medication. He continued to exhibit moderate underlying hostility, but otherwise handled himself well. He had a job to return to and was anxious to leave. See February 1979 VA treatment records. In September 1987, the Veteran reported that he slept good and did not have hallucinations, paranoia, or depression. He was working part-time and going to school. He was taking Haldol. See September 1987 private treatment records. In January 1989, the Veteran reported working two part-time jobs and going to college. He had some anxiety that he might get “sick” again. There were no specific symptoms at that time. See January 1989 private treatment records. In August 1989, the Veteran reported working and volunteering. He was planning on returning to college in the fall and working part-time. He reported that he was sleeping well with no auditory or visual hallucinations, paranoia, delusions, and depression. There were no suicidal or homicidal ideations. He felt that he functioned well with his medications and was reluctant to decrease his dosage of Haldol due to a history of being in prison and psychotic relapse. See August 1989 private treatment records. In January 1990, the Veteran’s physician reported that the Veteran was unstable and critical. He would easily get defensive and seemed to evidence paranoia. The Veteran admitted to resenting the physician’s questions and said he did not belong there with the “others,” stating that he only needed his medications. The Veteran was hostile. See January 1990 private treatment records. In January 1994, the Veteran was confused and unable to give information. He reported he had not slept for approximately 48 hours and was on his way to a VA drug abuse program when he got lost. He denied any memory of events immediately preceding admission to the hospital. See January 1994 private treatment records. The hospital reported that the Veteran was receiving private treatment approximately two times per year and was seen as stable. Prior hospitalizations occurred in 1973, 1978, 1981, and 1982; he stated that he was seen on these occasions for depression. Outpatient treatment for depression was received in 1981 and 1982 for 14 days. See January 1994 private treatment records. The patient was described as cooperative with good grooming and hygiene. Psychomotor activity was normal. He was not hostile and no abnormal behaviors were noted. Speech was relevant, clear, spontaneous, and “not loose.” Rate, tone, and volume were normal. Mood was not depressed; affect was appropriate. The Veteran denied hallucinations, delusions, paranoia, fears, worries, obsessions, and suicidal or homicidal thoughts. Sleep and appetite were not impaired. He was oriented times four with adequate immediate recall, and recent and remote memory. He could not recall the date of his first hospitalization. Intellectual functioning was above average. Judgment was adequate and insight was good. Id. The Veteran reported that he held a job as an operating engineer from September 1978 to March 1983. He also worked from 1984 to 1990 as a growth supervisor and from 1984 to 1993 as a floor-man. He did not state the number of hours per week he worked for any of his occupations. See September 2002 correspondence. The Veteran’s sister reported that her brother had a history of drug abuse, imprisonment, psychiatric hospitalizations, poor social skills, and an inability to form relationships and maintain gainful employment. She stated the Veteran held approximately 27 jobs in the past 30 years. Most jobs he held from 30 to 90 days, with longest time holding a job being approximately two years. His inability to work was related to his volatile nature, his impaired memory, chronic anxiety, and depression. She stated that because of his level of dysfunction, he was unable to sustain himself financially or socially and either lived with their parents and, since their mother’s death, with her. While he had brief periods of independent living, he must be monitored closely and have a supportive person nearby. See November 2002 statement. The Veteran reported that there was never a time where he has not been heavily medicated. See February 2015 statement. The Board finds that, after resolving reasonable doubt in favor of the Veteran, the Board finds that his PTSD manifested in a severely impaired ability to establish and maintain effective or favorable relationships with people, with symptoms of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. The evidence reflects that the Veteran’s PTSD symptoms were cyclical, and he went through periods of deterioration that ended in hospitalization, which were then followed by periods of less severe symptoms. While there may have been periods of less severe symptoms which can be potentially considered as periods of improvement, the Board finds these periods were at best short-term and temporary in duration and were not reflective of the actual underlying severity of the symptoms overall. The Veteran’s history of delusions and hallucinations is well-established and his general hostility reflects a severely impaired ability to establish and maintain effective relationships. As a result, an increased evaluation of 70 percent disabling is warranted using the pre-February 3, 1988 schedular criteria. However, after review of the schedular criteria both pre- and post-February 3, 1988, the Veteran does not meet the criteria to warrant a 100 percent rating for the periods from March 3, 1977 to January 21, 1979 and from February 16, 1979 to February 28, 1989. (The Board notes again that the criteria for a 100 percent rating are identical.) Specifically, the Veteran continuously reported that he worked at least two part-time jobs and went to college during the appeal period, to include jobs that lasted several years, such as his work from 1984 to 1990 as a growth supervisor. The Veteran’s own reports that he held jobs for several years outweighs his sister’s statement that he maintained a job for at most two years, because specific dates were provided by the Veteran. If the Veteran was able to work (even just part-time) and go to school, he was not demonstrably unable to obtain or retain employment. Moreover, while the Veteran’s sister reported poor social skills and an inability to form relationships, such evidence does not rise to virtual isolation in the community. Even if it did, the Board cannot base a rating solely on social impairment. See 38 C.F.R. § 4.132, Code 9410, Note (1) (1976), Code 9411, Note (1) (1994). The Board acknowledges that the Veteran would deteriorate prior to his hospitalizations and thus demonstrate more severe symptoms of delusions and hallucinations prior hospitalization, but the preponderance of the evidence does not reflect that he demonstrated those increased symptoms throughout the appeal period or even during distinct periods. Indeed, after his PTSD clearly worsened in January 1994, it was reported that his regularly treating physician believed he was stable and was only being treated twice per year. Accordingly, as the preponderance of the evidence reflects the Veteran’s PTSD symptoms did not manifest in virtual isolation in the community, a gross repudiation of reality, and were not totally incapacitating, a 100 percent rating is not warranted from March 3, 1977 to January 21, 1979 and from February 16, 1979 to February 28, 1989. While the January 1994 private treatment records reflect the Veteran was hospitalized in 1978, 1981, and 1982, the Board assigns such evidence little probative weight because the record directly contradicts itself, later saying that the Veteran only received outpatient treatment in 1981 and 1982, and because specific dates for such hospitalizations were not provided. See January 1994 private treatment records. Thus, such evidence cannot be the basis for additional temporary 100 percent ratings due to hospitalization pursuant to 38 C.F.R. § 4.29. REASONS FOR REMAND Entitlement to an evaluation in excess of 70 percent disabling from March 1, 1989 to July 26, 1994 for PTSD is remanded. Entitlement to TDIU is remanded. The Board cannot adjudicate whether the Veteran is entitled to a 100 percent evaluation for his PTSD from March 1, 1989 to July 26, 1994, due to the enactment of 38 C.F.R. § 4.16(c) on March 1, 1989. Specifically, that regulation provides that TDIU is not for application in cases in which the only compensable service-connected disability is a mental disorder assigned a 70 percent evaluation, and such mental disorder precludes a Veteran from securing or following a substantially gainful occupation. In such cases, the mental disorder must be assigned a 100 percent schedular evaluation under the appropriate Code. Here, the Veteran’s only service-connected disability is his PTSD and he has now been assigned a 70 percent rating during the entire appeal period. As such, entitlement to a 100 percent schedular rating cannot be decided until there is a finding of whether the Veteran was prevented from securing or following substantially gainful employment. The Veteran reported that he worked several jobs during the appeal period, but did not report the hours he worked, days missed, or other potentially relevant information relating to his ability to secure and follow substantially gainful employment. See September 2002 statement. His sister reported that he worked part-time, but did not identify his jobs or his job history. See November 2002 statement. Remand is required so the Veteran can be provided the opportunity to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and provide any additional evidence relating to his inability to work during the appeal period. The matters are REMANDED for the following action: 1. The AOJ should provide the Veteran appropriate notice of VA’s duties to notify and assist regarding how to substantiate a claim for entitlement to TDIU, to include providing him a VA Form 21-8940. The Veteran should assist in the matter by providing the requested information, to include information from March 1, 1989 to July 26, 1994. CONTINUED ON NEXT PAGE   2. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel