Citation Nr: 1826328 Decision Date: 05/01/18 Archive Date: 05/14/18 DOCKET NO. 14-06 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a rating in excess of 50 percent for the service-connected posttraumtic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployablity due to service-connected disabilities. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD T. Grzeczkowicz, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1968 to October 1971. This matter comes before the Board of Veterans' Appeals (Board on appeal from a November 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. FINDING OF FACT 1. The service-connected PTSD is shown to have been manifested by occupational and social impairment resulting in reduced reliability and productivity and difficulty in establishing effective work and social relationships, and did not more closely approximate the criteria for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood and an inability to establish and maintain effective relationships or total occupational and social impairment. 2. The Veteran is not unable to secure or follow substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155; 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice most recently in November 2013. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examination of the Veteran. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. PTSD A. Law and Regulations Disability ratings are determined by comparing a Veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran's PTSD is currently rated as 50 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411(2017). The next higher rating under the Code is a 70 percent rating, and in order to warrant such a rating, PTSD must be manifest by 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. 38 C.F.R. § 4.130 A 100 percent rating for PTSD is provided for 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. Id. 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. See 38 C.F.R. § 4.7 (2017). Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), p. 32). The Board notes that with regard to the use of the phrase "such as" in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are 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). The United States Court of Appeals for the Federal Circuit emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words "such as" that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). It held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. GAF scores ranging between 61 and 70 reflect "some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional...at a level of disability equivalent to reduced reliability and productivity. Scores ranging between 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See 38 C.F.R. § 4.130 (2017). B. Factual Background On a January 2009 VA Mental Health Clinician note, the Veteran reported that he was doing well and feeling great. The Veteran indicated that he continued to work full time as a security guard. The Veteran reported that his work place was a good support system for him. The Veteran indicated that his relationship with his girlfriend was going well. The social worker noted that the Veteran was neatly groomed and dressed. The social worker indicated that the Veteran was alert and oriented to time, date, and place. The Veteran denied any suicidal or homicidal ideations, plan or intent. The social worker diagnosed depression. On a September 2009 VA Mental Health Clinician note, the Veteran reported that his girlfriend's grandson continued to live with them and that it is going well. The social worker noted that the Veteran was neatly groomed and casually dressed. The social worker indicated that the Veteran was oriented to time, date, and place. The social worker noted that the Veteran's thoughts were logical and sequential, mood irritable at times and affect was appropriate. The Veteran denied any suicidal or homicidal ideations. On a December 2009 VA Mental Health Clinician note, the Veteran reported that his girlfriend's grandson had moved out. The Veteran indicated that he experienced difficulty sleeping. On a February 2010 VA Mental Health Clinician note, the Veteran reported that he was doing well and that he continued to live with his girlfriend. The Veteran also noted that his grandson moved in with him for a brief time and that he has since moved out. The social worker noted that the Veteran appeared neatly groomed and that he was alert and oriented to time, date, and place. The social worker indicated that the Veteran's thought content and thought process were logical and sequential. The social worker noted that the Veteran's mood was euthymic and affect was bright and full range. The Veteran denied any suicidal or homicidal ideations, plan or intent. On a June 2010 VA PTSD examination, the Veteran noted that he had only one good friend whom he interacts with frequently. The Veteran indicated that he had been in a relationship with his current girlfriend for the past thirty years. The Veteran noted that he had two sons that he was essentially estranged from them, seeing one son about twice a year and the other son five or six times a year. The Veteran indicated that he liked to fish and hunt, trap, cut wood, barbecue and fish. The Veteran admitted to have thoughts of wanting to hurt people and "wring their necks." The Veteran denied any suicidal or homicidal ideations. The examiner noted that the Veteran was dressed casually but that his grooming and hygiene were unkempt and lacking. The examiner reported that the Veteran had missing teeth and brown stains on his teeth from the tobacco that the Veteran kept in his mouth. The Veteran reported that he showered once a week and that he had to be reminded to shower. The Veteran denied any hallucinations or delusions. The Veteran reported panic attacks. The examiner diagnosed the Veteran with PTSD and depressive disorder, NOD. A GAF of 60 was assigned to the Veteran. In a March 2011 Buddy Statement, L. E. R. stated that the Veteran needed space and that he was very confrontation if anyone invaded his small perimeter of space. L. E. R. noted that the Veteran was irritable. L. E. R. indicated that he was the Veteran's only friend. L. E. R. reported that the Veteran had difficulty falling asleep and staying asleep. On a September 2012 VA PTSD examination, the Veteran reported that his main problem was being around other people. The Veteran indicated that he, in general, did not like people and only had a few friends who he trusted. The Veteran reported that he was often irritated at work and "almost" got in to it with someone several times in the past. The Veteran indicated that he had trouble falling asleep and that his girlfriend told him that he would kick her or hit her in his sleep. The Veteran noted that he was living with his currently girlfriend of over thirty years. The Veteran reported that he saw his sons two to three times a year. The Veteran noted that he had three friends that he sees and his one friend came with him to the examination. The examiner noted that the Veteran's PTSD symptoms included anxiety, suspiciousness, and chronic sleep impairment. The examiner diagnosed the Veteran with PTSD, anxiety disorder, NOS and a personality disorder with schizoid, antisocial, and passive aggressive features. The examiner indicated that the symptoms associated with the Veteran's personality disorder included difficulty interpersonal relationships that cause the Veteran to feel detached from others and not engage in activities that involve other people and be generally suspicious and irritable around others. A GAF score of 65 was assigned to the Veteran. The examiner noted that the Veteran's PTSD caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. The examiner noted that the Veteran appeared neatly groomed and casually dressed. The examiner indicated that the Veteran was alert and oriented to time, date, and place, mood was euthymic and affect was congruent. The examiner noted that the Veteran's thought process was logical and sequential. The Veteran denied any suicidal or homicidal ideations, plan or intent. The Veteran noted having a good support system in place. The examiner noted that the Veteran did not currently have the symptoms necessary for a PTSD diagnosis and that he was now diagnosed with anxiety disorder, NOS, and that he had personality disorder issues, some of which were, in the past, assumed to be part of his PTSD. On a January 2012 VA Addendum opinion, the examiner noted that the Veteran's anxiety disorder symptoms were viewed as being subthreshold PTSD symptoms. C. Analysis The Veteran asserts that a higher rating is warranted for his service-connected PTSD. By way of history, the RO granted service connection for PTSD in November 2007 and assigned a 50 percent disability rating from February 9, 2005, the date of claim for PTSD. The Veteran submitted a claim for an increased rating for his PTSD in December 2009. The Board finds that a rating in excess of 50 percent is not warranted for the Veteran's service-connected PTSD. The preponderance of the evidence is against the assignment of a 70 percent rating for the service-connected PTSD. The weight of the evidence shows that the service-connected PTSD has not been shown to cause deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. Many of the Veteran's symptoms and behaviors do not approximate the criterial for a disability rating in excess of 50 percent. For example, his cognitive abilities, such as adequate orientation, alertness, speech, and linear thought process, as demonstrated throughout the record weigh against finding that the Veteran's psychiatric symptoms result in deficiencies in most areas. The February 2010 VA Mental Health Clinician note indicated that the Veteran was alert and oriented to time, date, and place and his thought content and thought process were logical and sequential. The social worker noted that the Veteran's mood was euthymic and affect was bright and full range. The September 2012 VA PTSD examiner noted that the Veteran was alert and oriented to time, date, and place, mood was euthymic and affect was congruent. The examiner noted that the Veteran's thought process was logical and sequential. Throughout his appeal, the Veteran has been in a long-term relationship of over thirty years, and he has reported that relationship is positive. Also, the Veteran maintains a close friendship with at least one friend and he maintains hobbies to include fishing, hunting, and wood cutting. Thus, it appears that the Veteran is at least minimally socially engaged and has at least one close personal relationship that provides him with support. Although the Veteran indicated that he had been released from two previous jobs for being too aggressive, he also reported working full-time as a security guard for over ten years. In this regard, the September 2012 examiner found that "in fact, from an employment perspective, per the Vet[eran]'s report, it is his personality issues that interfere with his functioning more that his current anxiety symptoms." The weight of the evidence shows that the PTSD negatively impacted the Veteran's ability to work by causing moderate occupational impairment, but he was able to work fulltime. As such, while the Veteran had some trouble with work, the 50 percent rating specifically contemplates occupational impairment. Both the June 2010 and September 2012 VA examiners opined that the Veteran's PTSD was best summarized as causing occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication, not deficiencies in most areas. This probative medical evidence weighs against the assignment of a rating in excess of 50 percent. The Board finds that the record does not show the Veteran manifested symptoms that equal or more nearly approximate the criteria for a 70 percent evaluation. GAF scores assigned to the Veteran were predominantly in the range of 60 to 65. Although not dispositive of the evaluation issue, considered in light of the actual symptoms of the Veteran's disability, the GAF scores support a finding that the Veteran's PTSD is moderately disabling. This finding is also consistent with a 50 percent disability rating for PTSD. Further, the Veteran has not been shown to have difficulties in judgment and thinking; he does not have suicidal or homicidal ideations, intent, or plan; he does not exhibit obsessional rituals which interfere with routine activities; and his speech is normal. The Board notes that the June 2010 VA PTSD examiner reported that the Veteran's grooming and hygiene were unkempt and lacking. However, there were also numerous medical evaluations and the September 2012 PTSD examination report that noted the Veteran's adequate appearance and grooming, thus showing an ability to maintain personal hygiene. Therefore, the Board finds that a disability evaluation in excess of 50 percent is not warranted for the Veteran's PTSD. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board finds that the record demonstrates that, for entire rating period, the Veteran's disability picture does not more nearly approximate the criteria for a rating of greater than 50 percent under Diagnostic Code 9411. The preponderance of the evidence is against the assignment of a higher disability rating for the service-connected PTSD, and this claim is denied. III. TDIU The Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disability. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). Consideration may be given to his level of education, special training, and previous work experience in making this determination, but not to his age or the impairment caused by any disabilities that are not service-connected. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. Id. The Veteran has been awarded service connection for PTSD, rated at 50 percent disabling; bilateral hearing loss, rated at 40 percent disabling; diabetes mellitus II with erectile dysfunction rated at 20 percent disabling; peripheral neuropathy, left upper extremity associated with diabetes mellitus II with erectile dysfunction rated as 20 percent disabling; peripheral neuropathy, right upper extremity associated with diabetes mellitus II with erectile dysfunction rated as 20 percent disabling; tinnitus rated as 10 percent disabling; peripheral neuropathy, right lower extremity associated with diabetes mellitus II with erectile dysfunction rated as 10 percent disabling; peripheral neuropathy, left lower extremity associated with diabetes mellitus II with erectile dysfunction rated as 10 percent disabling; peripheral neuropathy, left lower extremity (femoral nerve) associated with diabetes mellitus II with erectile dysfunction rated as 10 percent disabling; peripheral neuropathy, right lower extremity (femoral nerve) associated with diabetes mellitus II with erectile dysfunction rated as 10 percent disabling; and scar, left anterior costal margin, zero percent rating. The combing rating for all of his service-connected disabilities is 90 percent. As the Veteran has at least one disability rated at 40 percent or more, he meets the schedular criteria for assignment of a TDIU. The remaining consideration is whether the Veteran's service-connected disabilities precluded him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage") for the period on appeal. See Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran's work history, to the extent that it has been provided, does not establish a pattern of unemployabilty. The Veteran had generally been shown to be working or at least to have the ability to work. In this regard, during the September 2007 and June 2010 VA PTSD examinations, the Veteran reported working full-time as a security guard for the past six or seven years. Similarly, on a September 2012 VA PTSD examination, the Veteran reported that he retired from working at his job for the last ten years. Thus, the September 2007, June 2010 and the September 2012 examinations indicated that the Veteran could work or at least had the ability to work. Additionally, a review of the evidence of record shows that the Veteran had not been unable to obtain and maintain gainful employment as a result of his service-connected disabilities. The Veteran was provided with a VA mental health examination in September 2007. The Veteran reported that he currently worked full-time for Allied Barton as a security guard for the past four years and that he previously worked for four years at Security Force One, but he was let go because they said he was too aggressive with a person who confronted him. The Veteran was provided with a VA mental health examination in June 2010 and the Veteran reported that he continued to work as a security guard at Allied Barton. The Veteran indicated that he had a history of being fired from jobs for being overly aggressive. However, the examiner noted that the Veteran was able to work. Moreover, the September 2012 VA examiner stated that the Veteran's mental health issues did not render him unable to secure and maintain substantially gainful employment. The examiner indicated that "in fact, from an employment perspective, per the Vet's report, it is his personality issues that interfere with his functioning more that his current anxiety symptoms. Regarding the Veteran's other service-connected disabilities, the June 2017 Medical Opinions for diabetes mellitus II to include erectile dysfunction concluded that these service-connected disabilities did not impact the Veteran's ability to work. Although the June 2017 Medical Opinion for Diabetic Sensory Motor Peripheral Neuropathy did find that the Veteran's diagnosed peripheral neuropathy impacted his ability to perform occupational tasks like prolonged walking and that his hand numbness limited some tasks, the examiner did not find that the Veteran could not work. In sum, the VA examination reports provide competent and probative evidence that the Veteran was not unemployable due to his service-connected disabilities. Thus, the weight of the evidence is against a finding that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Board recognizes that the Veteran's service-connected disabilities caused him significant occupational impairment, as evidenced by his combined 90 percent disability rating and the significant symptomatology he experienced. However, given that his service-connected disabilities were not shown to impact his ability to continue to work full time, that impairment is adequately compensated by the current schedular ratings assigned to these disabilities. Van Hoose v. Brown, 4 Vet. App. 361 (1993). As the evidence shows that the Veteran was able to perform some type of substantially gainful employment despite the limitations presented by his service-connected disabilities, the preponderance of the evidence is against this claim and it must be denied. 38 C.F.R. § 4.16; Alemany, 9 Vet. App. 518 (1996). ORDER Entitlement to a rating in excess of 50 percent for the service connected posttraumtic stress disorder (PTSD) is denied. Entitlement to a TDIU is denied. ____________________________________________ J. Schulman Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs