Citation Nr: 1808995 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 13-35 587 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 70 percent for adjustment disorder with post-traumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD I. Umo, Associate Counsel INTRODUCTION The Veteran served active duty in the U.S. Army from November 2000 to March 2007. The procedural history of these matters is not entirely clear. The Veteran filed a notice of disagreement in response to the July 2009 rating decision from the St. Petersburg, Florida VARO that reduced the evaluation of his service-connected psychiatric disability. In March 2011, this decision was reversed and the Veteran's prior rating was restored for the entire period on appeal. In January 2012, the Veteran's representative submitted a notice of disagreement regarding the denial of an increased rating for the Veteran's psychiatric disability, along with the denial of a TDIU. The Board notes that the March 2011 decision only reversed the reduction of the psychiatric disability. The decision did not adjudicate the issues of an increased rating or entitlement to a TDIU. However, as the RO has continued to adjudicate these issues, including issuing a statement of the case in October 2013, and the Veteran has filed a timely substantive appeal in December 2013, the Board finds that the issues remain on appeal. See Percy v. Shinseki, 23 Vet. App. 37, 43 (2009). This case was previously before the Board in June 2015, where the issues on appeal were remanded for further evidentiary development. FINDINGS OF FACTS 1. For the period on appeal, the Veteran's adjustment disorder with post-traumatic stress disorder (PTSD) was manifested by occupational and social impairment, with deficiencies in most areas, such as work school, family relations, judgment, thinking or mood; total occupational and social impairment has not been shown. 2. The Veteran's service-connected adjustment disorder with PTSD precludes substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 70 percent for adjustment disorder with PTSD have not been met. 38 U.S.C. § 1110, 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411, 9432-9440 (2017). 2. The criteria for a TDIU have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify & Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A and 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The duty to notify has been met. See the July 2011 VCAA letter. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances ... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran ...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that all available records pertinent to the claim have been obtained. The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. Increased Rating for Adjustment Disorder with PTSD The Veteran contends that his service-connected adjustment disorder with PTSD is more severe than is currently contemplated by his 70 percent disability rating. Under 38 C.F.R. § 4.130, psychiatric impairment is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 provides that a 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful situations (including work or a work like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411-9440. A 100 percent rating is in order when there is 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; 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, occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411-9440. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but to serve only 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 (2002). It should be noted that prior to August 4, 2014, VA's Rating Schedule that addresses service connected psychiatric disabilities was based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "DSM-IV"). 38 C.F.R. § 4.130. Like this case, diagnoses many times included an Axis V diagnosis, or a Global Assessment of Functioning ("GAF") score (explained in more detail below). The DSM was recently updated with a 5th Edition ("DSM-V"), and VA issued an interim final rule amending certain provisions in the regulations to reflect this update, including the Schedule for Rating Disabilities. 70 Fed. Reg. 45093 (Aug. 4, 2014). This updated medical text recommends that GAF scores be dropped due to their "conceptual lack of clarity." See DSM-V, at 16. However, since the Veteran's PTSD claim was originally certified to the Board prior to the adoption of the DSM-V, the DMS-IV criteria will be utilized in the analysis set forth below. With regard to GAF scores, the GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. Carpenter v. Brown, 8 Vet. App. 240 (1995). Pertinent to this case, GAF scores ranging from 61 to 70 indicate that a veteran has some mild psychiatric symptoms (e.g., depressed mood and mild insomnia) or experiences some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household); however, the veteran is found to generally be functioning pretty well and has some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 indicate moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers and co-workers). GAF scores of 41 to 50 indicate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social or occupational functioning (e.g., no friends, unable to keep a job). While the Rating Schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130 (2017). Here, the Veteran has extensive psychiatry notes for the period on appeal. From October 2009, the Veteran's adjustment disorder with PTSD manifested by occupational and social impairment, with deficiencies in most areas, such as work school, family relations, judgment, thinking or mood. Specifically, starting from October 2009, the Veteran's psychiatric evaluation showed that the Veteran continued to have poor impulse control. He had a domestic incident where the Veteran threatened his spouse and the police were sent to his house. His mental status examination showed there is no evidence of psychotic thought process. Thoughts were logical, coherent, and linear. There was no evidence of loosened associations, or flight of ideas. There was no evidence of hallucinations, delusions, obsessions or compulsions. His memory was intact and the Veteran did not show any suicidal or homicidal ideations. His mood/affect was sullen and remorseful. The Veteran had a similar assessment in the November 2009 psychiatry individual mental health clinic. In February 2010, the Veteran went to the emergency room for management of his medications. He took a knife to his dorsal left forearm and superficially cut a checkboard into skin. He denied suicidal ideation, but stated he did it because he was tired of the pain in his head. He also reported feeling depressed. In a psychiatric note from February 2010, the Veteran reported not being able to control his anger or mood swings, as well as sleep impairment. He was afraid to fall asleep in the dark; he frequently spoke in his dreams and has nightmares. He expressed that he is mostly depressed. Concerning his self-inflicted cut on his forearm, he reported he wanted the pain to move from head to somewhere else. He added that he heard screams but denied any other hallucinations. He denied any suicidal or homicidal ideations. In a July 2010 psychiatry note, the Veteran reported restlessness, distractibility/poor concentration, irritability, and mood swings. Along with these symptoms, he continued to exhibit multiple PTSD symptoms, including hypervigilance, nightmares and intense physiologic distress with driving. He was given a GAF score of 55. In an emergency room note from September 2010, the Veteran stated he has been depressed for six years and has had suicidal ideations for a while. He presented with very flat affect, but denied any current suicidal ideations. In a January 2011 psychology note, the Veteran depression was stable, as he continued to experience periods of sadness and social isolation. He reported working at his family coffee shop because his mom makes him. He rates his depression as an eight out of ten. His sleep remains disrupted by nightmares nightly. He maintained difficulty with concentration with bad short-term memory. He reported that his mind still races and he has significantly decreased interest in activities. He still cannot drive due to anxiety. He admitted to transient suicidal thoughts but denied any plan or intention. In a February 2011 psychiatry note, the Veteran endorsed more anxiety and increased crying. He still struggled with nightmares and depression but denied suicidal or homicidal ideations. In an April 2011 psychiatry note, the Veteran presented as a little happier with his medication. He endorsed his anxiety is a little less and he endorsed sleeping better as well. Veteran denied thoughts of hurting himself. He endorsed that he gets more depressed when going to groups and therefore does not want to go. In July 2011 psychology note, the Veteran reported a slightly increased depression related to an increase in nightmare activity. However, he reported sleeping more than twelve hours a night. He has considered obtaining a gym membership. His appetite was stabled but weight was increasing due to inactivity. He reported feelings of sadness but indicated his life was "really good." He maintained difficulty concentrating but stated it was less than before, but he maintains his short-term memory is horrible. He still could not drive due to anxiety. He denied suicidal ideations and denied substance abuse. Subsequent psychiatry and psychology notes from 2011 did not indicate an increase in symptomology of the Veteran's psychiatric disability. He maintained similar levels of depression, anxiety, sleep impairment, and short-term memory impairment. He did report a manic episode in December 2011, in which he was talking fast and not sleeping. He enrolled in classes but stopped after one week because he realized the classes were too difficult for him. Importantly, he continued to deny suicidal and homicidal ideations. In an April 2012 psychology note, the Veteran reported that he is living on his own and noted that in order for him to do that, he had to get over his fear of driving. Likewise, he recently found out that his girlfriend was pregnant. He reported improved depression with periods of brightening mood. He still feels irritable at times, but is able to maintain himself. He reported increased energy and had a small circle of friends, making him less isolated. He still deals with nightmares nightly. His appetite was stable with stable weight. His short-term memory remained bad but he reported fewer issues with concentration. His mood was congruent with content of speech, fuller in range, no longer tearful. His memory was intact as he was able to reconstruct details of recent as well as remote past. He admitted to suicidal ideations with no firm plan or intent, but no homicidal ideation. He denied any hallucinations or delusions. His judgment was intact, but he had limited insight. In a July 2013 psychology note, the veteran reported doing well, but admitted he was tired due to caring for his 8-month-old son. He recently broke up with his partner but continued to have feeling for her. He admitted that they broke up due to him being verbally abusive with her when he became angry. The veteran reported a good mood with a broad affect, clear speech, though process was goal oriented, no thought disturbances were observed. The Veteran did not report any suicidal/homicidal ideation, plan or intent. Veteran's mental disability remained largely unchanged for 2013. Periods of feeling less depressed, but maintained poor short-term memory. No suicidal or homicidal ideation and better impulse control. In a July 2014 mental health consult, the Veteran endorsed symptoms of depression, nightmares, and sleep impairment. He reported that he avoids sleep due to threat of nightmares with 1.5 hours of sleep at a time. He was anxious, angry, and irritable. He stated that he could not tolerate crowds, as he did not like people. By an October 2014 psychiatry note, the Veteran reported that his symptoms of insomnia, nightmares, hypervigilance, depression/irritability and social avoidance, were satisfactorily controlled with medication. He indicated he wanted to control his finances, and not have to rely on his mother. He denied any suicidal or homicidal ideation, intent or plan. In a January 2015 psychiatry note, the veteran reported more sleep disruption, as that time was the anniversary of three deaths. He would awake a few times nightly with nightmares and associated sweating. He indicated that he wanted to move to Jacksonville to be closer to his son. Based on the records, the Veteran missed a number of psychiatry meeting in 2015. The last psychiatry note was in March 2015 and similar to the January 2015 record. In a September 2015 HCHV assessment, the Veteran stated that he had not taken medication for his mental health issues "in a while," partly because he moved and it was not a priority, and partly because he felt like he was over medicated. The records do not show a psychiatry meeting after March 2015, for 2015. In a September 2016 C&P examination, the Veteran reported depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner summarized the Veteran's psychiatric disability as resulting in occupational and social impairment with reduced reliability and productivity. In a November 2016 psychiatry consult, it was indicated that that was the Veteran's first visit with this provider, with the last evaluation by a psychiatrist in March 2015. The Veteran wanted to re-start his medication, and indicated that he had not taken them for months. He reported having many personal problems, including being a victim of domestic violence. He has not seen his four-year-old son since moving out the apartment. He described having sudden irritability and anger that last for a few hours with minor triggers. He continued to suffer from depression, mostly reactive to stress. He had low energy and periods of mania. He denied suicidal ideation and did not present with any psychosis. He was alert, oriented in all three spheres, with good recall, judgment, and attention span. His thought processes were clear, with no delusions or hallucinations. His mood was euthymic with full affect. A December 2016 psychiatry note mirrored the previous month. In a February 2017 psychiatry telephone note, the Veteran reported difficulty coping as he could not see his child. He was financially strapped, and reported poor concentration with significant anxiety. He denied any suicidal thoughts, but reported feeling helpless with an inadequate support system. Per the psychiatrist's recommendation, the Veteran came in and was alert, oriented in all three spheres, with good recall, judgment, and attention span. His thought process was normal with coherent, logical speech. He did not exhibit any delusions or hallucinations. He denied any suicidal or homicidal ideations. His mood was depressed/dysphoric; his affect was full and congruent. Additionally, the Board notes that during the period on appeal, the Veteran's GAF scores ranged from 50-65, with a vast majority of the assigned score being 55, which indicated moderate difficulty in social or occupational functioning. After a review of the evidence of record, the Board finds that a disability rating in excess of 70 percent is not warranted for the Veteran's psychiatric disability. The Veteran has not demonstrated the type and degree of symptoms, such gross impairment in thought processes or communication; persistent delusions or hallucinations; or grossly inappropriate behavior that lead to total occupational and social impairment. Besides transient thoughts of suicide, which were limited to 2009-2010, the Veteran did not endorse suicidal or homicidal ideations. He never presented as disoriented to time or place, nor did he report memory loss for names of close relatives. The presence or absence of certain symptoms is not necessarily determinative. Those symptoms must ultimately result in the occupational and social impairment in the referenced areas. Vasquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Here, however, the treatment records and VA examination report are not indicative of total occupational and social impairment that approximate the criteria for a 100 percent rating. The findings of the VA examiner and treatment records demonstrate that the Veteran suffers from occupational and social impairment with deficiencies in most areas, due to suicidal ideation, depression, impaired impulse control, and the inability to establish and maintain effective relationships. Accordingly, in this case, the Board finds that the existence and severity of the Veteran's psychiatric symptoms are contemplated adequately by the relevant rating criteria. Many of the symptoms are specifically listed in the General Rating Formal for Mental Disorders, and the other are common psychiatric symptoms that, while not specifically listed, are comparable indicators of the type of occupational and social impairment contemplated in the Rating Formula. The Board finds that the Veteran's symptoms as described in detail above, are consistent with the currently assigned 70 percent disability rating and do not meet the criteria for a higher rating. Essentially, total occupational and social impairment has not been shown. The Board acknowledges that the Veteran is competent to report symptoms of a psychiatric disability. Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). There is no basis to question the credibility of those statements. However, as a layperson, he is not competent to identify a specific level of disability of a psychiatric disability according to the appropriate diagnostic code. VA medical professionals who have examined him have provided such competent evidence concerning the nature and extent of the Veteran's service-connected psychiatric disability. The medical findings directly address the criteria under which this disability is evaluated. The Board finds these records to be the only competent and probative evidence of record, and therefore they are accorded greater weight than the Veteran's subjective reports of increased symptomatology. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 70 percent for his psychiatric disability. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a TDIU The Veteran has asserted that he is unable to work due to his service-connected disabilities. The Veteran's combined disability rating is 80 percent from April 1, 2007, based on the following service-connected disabilities: bipolar disorder, adjustment disorder with mixed anxiety and PTSD, rated 70 percent; recurrent right shoulder dislocation status post slap procedure, rated 10 percent from April 1, 2007 and 20 percent from August 16, 2016; bilateral pes planus with plantar fasciitis, rated 10 percent; and a noncompensable rating for GERD. For the purposes of 38 C.F.R. § 4.16(a), two or more disabilities combined must equal at least 70 percent, with one rated at 40 percent or more. The Board notes that the Veteran meets the minimum schedular criteria for the assignment of a TDIU, as his adjustment disorder is rated at 70 percent and his combined disability rating equals 80 percent. Further, based on the totality of the evidence, and applying the doctrine of reasonable doubt, the Board finds that the evidence of record shows that the Veteran is unable to follow a substantially gainful occupation consistent with his education and occupational history due to his service-connected disabilities. In making this determination, the Board finds that the combined effect of the Veteran's psychiatric disability and his physical impairments, have resulted in his inability to secure or follow substantially gainful employment. At the outset, the Board notes that the Veteran was scheduled to have a vocational rehabilitation assessment per the Board's remand, but failed to show for his appointment. See September 2016 Email Correspondence. As the Veteran did not report for the VA examination, he assumes the risks associated with his failure to report. See Turk v. Peake, 21 Vet. App. 565, 567-68 (2008). As such, the Board will adjudicate the claim based on the evidence of record pursuant to 38 C.F.R. § 3.655(b). The evidence of record indicated that the Veteran has had several jobs, such as floor technician, environmental service specialist, assistant manager, and housekeeping aide. His last job was working at Kangaroo Express as an assistant manager, but he reported he was fired from that job because he "bumped heads with the manager a lot" and because he often missed days due to disabilities. The Board notes that the evidence of record suggested that the Veteran completed high school and had credits from a four-year college at a sophomore level. See October 2015 Private Vocational Evaluation. In his private vocational assessment, the vocation expert, Mr. C.Y., indicated that the Veteran has very little in the way of work history, with a six-month stint as a floor technician and five-month job doing the same thing in another hospital. He was an assistant manager for a convenience store but only for a month. Mr. C.Y. stated that the Veteran had no transferrable skills from his employment, as the positions were unskilled, and even the assistant manager duty was only performed for a month. Skills often take at least six months to attain. As it relates to service-connected disabilities, the Veteran acknowledges irritability and violence because of his PTSD and has an inability to concentrate or focus for the length of time that even unskilled employment demands. This is a result of his intrusive thoughts as well as anxiety attacks. He suffers from nightmares and lack of sleep causing him to be fatigued during the day. He has pain in his right arm that is worse on some days, and he is unable to raise his right arm above the shoulder, which is his dominant extremity. The Veteran had tried to work but could not maintain employment, with his psychiatric disability being his main issue. Mr. C.Y. opined that based on the Veteran's service-connected disabilities and his level of education and work experience, it was his professional opinion that the Veteran was unemployable. Moreover, the Veteran is in receipt of SSA disability. He retroactively received social security disability in September 2008 (date of onset), due to his psychiatric disability. See April 2016 SSA Medical Records. The Board notes that a TDIU is warranted where a Veteran's service-connected disabilities are of sufficient severity to produce unemployability. It is clear from the Veteran's treatment records and medical opinions of record that he has had an issue with his psychiatric disability since service-connection was established. In light of the Veteran's occupational background and the functional limitations described, the Board finds that he was unable to obtain and maintain any substantially gainful employment in accordance with his background and education because of his service-connected disabilities for the entire period on appeal. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to TDIU is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an evaluation in excess of 70 percent for adjustment disorder with post-traumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted, subject to the laws and regulations governing the payment of VA compensation benefits. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs