Citation Nr: 19122946 Decision Date: 03/27/19 Archive Date: 03/26/19 DOCKET NO. 17-39 003 DATE: March 27, 2019 ORDER For the entire initial rating period on appeal, beginning March 30, 2012, a 70 percent rating for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a rating higher than 70 percent for PTSD is remanded. Entitlement to a total disability evaluation based on individual unemployability due to the veteran’s service- connected disabilities (TDIU) is remanded. FINDING OF FACT For the entire initial period on appeal, beginning March 30, 2012, the Veteran’s PTSD resulted in symptoms that approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW For the entire initial period on appeal, beginning March 30, 2012, the criteria for a 70 percent rating for PTSD have been approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code (DC) 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2009 to March 2012. Initial Rating for PTSD This appeal stems from a February 2014 rating decision that assigned the initial 30 percent rating for the Veteran’s PTSD. The criteria for rating psychiatric disabilities, other than eating disorders, are set forth in the General Rating Formula (General Rating Formula) for Mental Disorders. See 38 C.F.R. § 4.130. Under the General Rating Formula, a 30 percent rating is warranted for occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal) due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted if the evidence establishes 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 work like setting); and/or inability to establish and maintain effective relationships. Id. A 100 percent rating (total occupational and social impairment) is warranted 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. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve 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). Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Board recognizes that the Court in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA’s general Rating Formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating; however, the Court further indicated that, without those examples, differentiating between rating evaluations would be extremely ambiguous. When it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant’s favor and the symptoms in question must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating in cases where the DSM-5 applies when the appeal was certified after August 4, 2014. The service connection claim for PTSD was pending prior to August 4, 2014, but this specific appeal regarding the assignment of the initial rating was certified to the Board after August 2014, and as such, DSM-V apply. Regardless, however, because of the Court’s emphatic pronouncement in Golden that the GAF scores are methodologically flawed and are particularly unreliable as applied to PTSD, in this decision, the Board will place no reliance on GAF scores for rating this Veteran’s PTSD. The Veteran in this case asserts that his PTSD is worse than the currently assigned 30 percent rating. After a careful review of all the evidence, lay and medical, the Board finds that a 70 percent rating, but not higher, is warranted for the entire initial rating period on appeal. Specifically, the weight of the evidence demonstrates that the Veteran’s anxiety disorder more nearly approximates occupational and social impairment with deficiencies in most areas. Turning to the evidence, the Veteran underwent a VA examination for mental disorders in August 2012, at which time the VA examiner noted that the Veteran did not meet the criteria for a diagnosis of any mental disorder. The Veteran denied having any mental health problems and although the examination request noted complaints of insomnia, the Veteran stated that he slept well and had no sleeping problems other than snoring. In terms of occupational impairment, it was noted that the Veteran was married for two years and had a good relationship with his spouse. He stated that he enjoyed spending time with his spouse and friends and noted that they enjoyed camping, jet skiing, and four-wheeling. He also enjoyed dining out with his spouse and had a “shop” on his property where he liked to spend time working on projects. In terms of occupational impairment, it was noted that the Veteran lost his job of building heavy equipment due to a back condition. According to February 2013 private treatment records from Horizon Behavioral Health, the Veteran indicated that he had some bad dreams lately. He described dreaming approximately once a month about being back in Iraq. This started after he went to a driving school, where the trucks were arranged the same way they were in Iraq and reminded him of his military occupational specialty of a truck driver. He further reported having frequent distressing thoughts, recurrent dreams, nightmares, and flashbacks about his military experience. He described becoming easily agitated and startled by sounds that mimicked gunshot and a state of heightened anxiety in certain situations. He had panic attacks on and off, indicated that he wanted to be where he could see and watch scenes and preferred to sit in the back of the room and watch the entrance. He attempted to avoid crowds and watching war movies. He further reported that he lost some form of connection to people and felt more connected to others who had similar experiences as him. He also had mood swings and difficulty sleeping, but denied suicidal thoughts and manic or psychotic symptoms. He left the driving school without completing the training and felt better after. The mental health professional noted that the Veteran reported having difficulty finding a job and felt helpless about his situation at times. Upon mental status examination, the Veteran was fully oriented, casually dressed, and calm and fully cooperative. His mood was euthymic, but his affect was anxious. Thought process was coherent and logical, he denied suicidal and homicidal thoughts, and there was no evidence of delusions or hallucinations. Attention and concentration were intact, and insight and judgement were good. The mental health professional rendered a diagnosis of PTSD. Additional private treatment records dated in March 2013 noted that the Veteran reported no change in his symptoms. He continued to have frequent distressing thoughts, recurrent nightmares, ad flashbacks about his combat experience. He again reported being in a state of heightened anxiety. He added that his mood was irritable and reported having spontaneous crying spells, being on edge all the time, and having anxiety and panic attacks about once or twice a day. He also had erratic sleep and sometimes woke up feeling mentally exhausted from his nightmares about Iraq. He indicated that certain cues such as welding, seeing an American flag, or driving a truck resulted in severe agitation and dissociative experiences. He always looked around and was constantly on guard. The Veteran stated that he could not “shift gears back into a normal life,” and noted that he was unemployed for one year and everything he previously enjoyed doing, he just did not feel like doing anymore. He denied any psychotic or manic symptoms. Upon mental status examination, the Veteran was fully oriented and casually dressed. His mood was anxious and affect tense. Thought process was coherent and logical, he denied any suicidal or homicidal thoughts, and there was no evidence of delusions or hallucinations. Attention and concentration were fair, and insight and judgment were good. The mental health professional noted that the Veteran presented with worsening depression and anxiety symptoms reminiscent of his trauma, and confirmed a diagnosis of PTSD. In December 2013, the Veteran underwent a VA examination for PTSD, at which time the VA Examiner confirmed diagnoses of PTSD and alcohol use disorder in early full remission. The examiner noted that symptoms of PTSD and alcohol use disorder could be differentiated, but indicated that all current symptoms were due to PTSD, since the alcohol use disorder was in remission. The examiner further noted that the Veteran was casually, cleanly, and appropriately dressed, and fully oriented. Psychomotor activity was within normal limits, speech was unremarkable, and communication was good. The Veteran appeared mildly anxious. Thought process and content were unremarkable, and there were no signs of delusions or hallucinations. No inappropriate behavior was displayed. The Veteran reported that he hit “rock bottom” a few months earlier, at which point he lost almost ten pounds, was drinking heavily, and had to go to “suicide classes,” but the new medication helped him with his mood. He received two DUIs approximately two months earlier and denied having any physical fights since discharge from service. He indicated that his mood depended on the day and the week and was “kind of like a roller coaster,” when he was sometimes happy, but noted that he was feeling depressed or down about half the time. He further noted feeling anxious, worried, or nervous all the time. He also had panic symptoms with nightmares and other PTSD triggers, but the examiner noted that he did not have “full blown panic attacks.” Appetite and weight were variable as well as his level of interest in things and his energy. He also had problems with irritability, which he described as “snap over stuff that don’t really matter.” He had no major problems with hygiene or self-care, was independent with activities of daily living, did household chores, and managed his finances. He further reported normal memory functioning and mild problems with attention and concentration, which started approximately three to four months after discharge from service. He denied having suicidal or homicidal ideation, plan, or intent, or having hallucinations. Lastly, he noted that he was worried all the time and stated, “[e]verything I do now is calculated, I guess.” In terms of social impairment, it was noted that the Veteran had two sisters and two brothers, two half-brothers, and one half-sister, and his relationship with them was described as good. He was married for two years but was in the process of a divorce, which he believed his mental health played a role in their need to split. He was not involved in another relationship, lived alone, and indicated that he did not have a good relationship with anyone in town. He had some friends out of town who he kept in contact with and talked with once every couple of weeks. He stated that he felt different than others his age unless they were in the military. Lastly, he stated that he liked to spend time outdoors. In terms of occupational impairment, it was noted that the Veteran dropped out of driving school after it triggered his PTSD and at the time of the examination was working at Dobby’s Lumber. He denied missing work due to mental health reasons and reported getting along “alright” with his coworkers and supervisors. He had another job in maintenance for two to three month, which he left because it was only seasonal, and denied having any issues at this job. He indicated that he learned welding in high school and wanted to be a welder, but could no longer weld because it triggered his PTSD symptoms. The examiner identified symptoms of depressed mood, anxiety, suspiciousness, and chronic sleep impairment, and concluded that the Veteran’s PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. According to January 2014 VA treatment records, the licensed clinical social worker contacted the Veteran by telephone. He reported that he stopped drinking and was starting a new job in February 2014. He expressed interest in pursuing another option for psychotherapy to address his hypervigilance and intrusive thoughts. He denied having suicidal or homicidal ideation, plan, or intent. Thereafter, in March 2014, the Veteran contacted the staff psychologist and raised his concerns of having poor memory at his new job. He described that sometimes he forgot what he intended to write down when going between places in mold production company, where he was a technician. The psychologist noted that he was educated about possible impact of anxiety and period of adjustment from very simple delivery job to a more complicated production one and was encouraged to present to the clinic to discuss further. No suicidal or homicidal ideation was elicited during the conversation. In his March 2014 notice of disagreement, the Veteran noted that in discussing the various PTSD criteria, the VA examiner noted symptoms of recurrent distressing dreams; marked physiological reactions to internal or external cues; avoidance of or efforts to avoid distressing memories, thoughts, feelings, or external reminders about or closely associated with the traumatic event; persistent and exaggerated negative beliefs or expectations about oneself; feelings of detachment or estrangement from others; persistent inability to experience positive emotions; irritable behavior and angry outbursts; hypervigilance; problems with concentration; and, sleep disturbances. He asserted that feelings of detachment or estrangement from others represented difficulty in establishing and maintaining effective work and social relationships, irritable behavior and angry outbursts represented impaired judgment, and problems with concentration represented retention of only highly learned material and forgetting to complete tasks. Lastly, he indicated that all his symptoms represented disturbances of motivation and mood. Thereafter, according to December 2015 VA treatment records, the Veteran came for a regular routine physical and stated that they were expecting first baby at the end of December. Depression and PTSD screenings were positive based on the Veteran’s responses that he felt little interest or pleasure in doing things and felt down, depressed or hopeless several days a week as well as reports of having nightmares and thoughts about his traumatic event, being constantly on guard, watchful, or easily startled, and feeling numb or detachment from others, activities, or his surroundings. It was noted that he presented with appropriate behavior and appearance, had fair insight and judgment, and denied homicidal or suicidal ideation. The Veteran declined mental health assessment during this visit. A few days later in December 2015, the Veteran underwent a psychiatric assessment. It was noted that the Veteran’s primary concern was unclearly stated but revolved around the anticipated birth of their first baby and his uncertainty about how he will be as a father, as well as around his spouse’s sense that he was never fully emotionally engaged. The psychologist noted that the Veteran was under-responsive emotionally and initially had a hard time expressing his concerns. He stated that he and his spouse neared separation approximately three years earlier, but he quit drinking and got a new job, which helped him reconcile with his spouse. Though, he noted that although their relationship was stable, they were not close emotionally. Emotional blunting was discussed as a likely symptom of PTSD and the Veteran stated that he felt like he made so many changes to try and avoid feeling anxious, but noted that his lack of formerly enjoyed social activities also impacted his marriage. He also discussed his hypervigilance such as feeling more comfortable to move his chair close to the door. Subsequent VA mental health treatment records dated on January 19, 2016 noted that the Veteran reported improvement and feeling slightly less bothered about his intrusive memories and less guilt about having PTSD just by talking it over. The Veteran reported that he had periods where he considered “going for a drive and just not coming home,” indicating that he would use his pistol. Thereafter, in February 2016, it was noted that the Veteran reported that his condition worsened, which was noted in the context of his inability comfort his baby and feeling like a failure. He further reported feeling more depressed and having more tearful episodes. The psychologist noted that while suicidal ideation was denied, the Veteran’s current situation likely will increase the risk somewhat. A January 2017 inter-facility transfer coordinator note indicated that a request for transfer for the Veteran was reviewed due to reported psychiatric acute needs; however, no inpatient acute psychiatric bed was available on the unit and that they will continue to check for availability. Because no beds were unavailable the transfer request was denied. Subsequent private treatment records dated in January 2017, a day after the Veteran’s transfer request was denied, noted that the Veteran was hospitalized from January 25, 2017 to January 30, 2017 due to complaints of severe stress; nightmares; anxiety; hopelessness; anhedonia; suicide ideation with plan to shoot himself and access to firearms; depressed mood; and, irritability. Modifying factors were noted as marital problems and employment problems due to long shift six days a week. It was noted that he was not taking any medications at the time of admission and was prescribed psychiatric medication upon admission. He was pleased with the results of the medication and by day five of the hospitalization and reported sleeping better with decrease in frequency of his nightmares. Two-days after discharge from the inpatient unit, the Veteran underwent a psychiatric evaluation, at which time he reported that since discharge and being prescribed medication, his nightmares and sleep disturbances decreased in frequency and intensity. He stated that in the past his dreams caused him to wake up sweating, which was not the case in the previous week. He felt depressed about his family being back in Tennessee and that he and his spouse were in Ohio because he had very little support. He noted that his relationship with his spouse was rocky, but did not elaborate on further questions regarding the relationship. Though, he stated that he experienced some anxiety related to important decisions he and his spouse struggled to make. Specifically, he wanted to move back to Tennessee after his treatment, but she was unwilling at the time. He further noted that he often purchased things to keep his mind busy and cope with his mood, but those purchases lost their emotional value to him quickly. He denied having manic symptoms and indicated that he was employed at Graham Packaging, but was on medical leave due to his psychiatric treatment. He was fully oriented and denied suicidal or homicidal ideation. Though, it was noted that he reported thoughts of suicide but did not have any active intent. According to February 2017 private mental health treatment records, the Veteran’s depressive symptoms improved but his PTSD nightmares continued to be a problem, although he noted that he had nightmares less frequently than prior to his hospitalization. He denied any suicidal or homicidal ideation. Upon mental status examination, hygiene and grooming were good, speech was regular, and mood and affect were within normal limits, “happy, smiling appropriately.” Thought process was logical and thought content was focused. The Veteran again denied any suicidal or homicidal ideation, auditory or visual hallucinations, or impulsive behaviors. He was fully oriented, and his attention and concentration were good. Insight and judgement were within normal limits. In a March 2018 brief in support of claim, the Veteran’s attorney stated that the Veteran’s PTSD warranted 70 percent if not 100 percent disability rating. It was argued that the December 2013 VA examiner noted that the Veteran “does not have a good relationship with anyone in [his] town” and that he admitted attending “suicide classes” due to his depressed and disturbed mood. It was further noted that the VA examiner noted that the Veteran expressed irritable behavior with anger outbursts, problems with concentration, feelings of detachment and estrangement from others, and, recurrent distressing dreams. In an affidavit associated with the attorney’s argument, which was authored by the Veteran, he stated that he noticed that his symptoms worsened since his discharge from service and caused him great difficulty forming and maintaining relationships, severe problems with employment, and with performing daily tasks. He noted that one of the main symptoms he experienced was intense flashbacks and nightmares. He further stated that his PTSD made it almost impossible for him to maintain effective professional and personal relationships and indicated that he had serious problems communicating with people. He indicated that when talking to people, he noticed that his words were “jumbled up” and his thoughts “become lost.” He further noted that he isolated himself from others, did not have many friends, and was hesitant to get close to people. He reported marital problems, which was described as fighting often, and indicated that he got physical. In this regard, he noted that the police were called previously, and this behavior pushed people away from him, which made it difficult for him to have relationships. He added that he had a short temper and got upset over little things such as people being late, and his behavior in public was inappropriate, since he often got angry, yell, and swear. He described memory problems such as inability to recall names of close family members such as his own brother’s name. His concentration was described as “horrible” and “1 or 2 out of 10.” He additionally described lack of motivation, experiencing frequent panic attacks, and feeling very depressed and anxious. He indicated that he tried to commit suicide a year earlier and was hospitalized for two-weeks. He added that he had suicidal and homicidal ideation at least once a day. Lastly, he indicated that his PTSD made it impossible for him to hold a job because he could not get along with others and got angry very easily, and noted that he lost his last job due to the suicide attempt. On review, the Board finds that a 70 percent rating is warranted for the entire initial period on appeal. In so finding, the Board finds that, with the exception of the Veteran’s reports during the August 2012 VA examination, which was conducted only a few months after his separation from active duty, he reported symptoms such as inability to establish and maintain effective relationships, impaired impulse control, difficulty to adapt to stressful circumstances, and suicidal ideation, all which he is capable to report as a lay person. While it appears that his symptoms may have fluctuated in severity throughout the pendency of the appeal, he overall continued to endorse these symptoms, which are contemplated by the criteria for a 70 percent rating. In terms of occupational impairment, the Board specifically considered evidence suggestive that the Veteran’s psychiatric symptoms have some impact his ability to work, nevertheless, additional information is necessary as discussed in the remand portion below. In summary, for the entire initial rating period, the Board assigns a 70 percent disability rating for the Veteran’s psychiatric disorder. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Initially, a remand is necessary for the RO to implement the Board’s decision herein. TDIU Moreover, additional evidence is necessary to determine whether entitlement to a TDIU is warranted. Recently, a January 2019 rating decision denied entitlement to a TDIU as the Veteran did not submit the requisite TDIU form that was provided to him. Nonetheless, a TDIU claim is still part and parcel of the increased rating claim here on appeal, and the increase of the Veteran’s PTSD rating to 70 percent again raises the issue of unemployability. The Board notes that while the Veteran was unemployed during some periods, as discussed in detail above, he reported that he lost his job of building heavy equipment due to his service-connected back condition, reported that he left another seasonal maintenance job, worked at Dobby’s Lumber at the time of the December 2013 VA examination, and started a new job in February 2014, where he reported some issues with concentration and anxiety. Nevertheless, he did not submit any occupational information, to include a completed VA Form 21-8940, despite the RO’s request and his attorney’s response that this information will be provided. As such, the Board must defer its decision pending the proposed development. Increased Rating for PTSD Because the Board is remanding herein the issue of entitlement to a TDIU, which includes determination regarding the effects of the Veteran’s service-connected disabilities on his ability to work, entitlement to a rating higher than 70 percent for PTSD, which contemplates in part total occupational impairment, must also be remanded as it is inextricably intertwined. A remand is therefore warranted to determine whether any newly obtained evidence warrants a rating higher than 70 percent for PTSD. Treatment Records Lastly, while the Veteran did not specifically identify any outstanding treatment records, in his March 2018 affidavit discussed above, he reported being hospitalized a year earlier for a period of two-weeks. While inpatient treatment records from January 2016 noted a period of hospitalization for five-days, there is no indication of hospitalization of a two-week period. Accordingly, on remand, VA must ensure that all outstanding VA and private treatment records are associated with the claims file. The matter is REMANDED for the following action: 1. Implement the Board’s decision herein granting an initial 70 percent rating for PTSD. 2. Ensure that all outstanding VA treatment records are associated with the claims file. 3. Contact the Veteran and ask him to provide any information regarding any outstanding private medical treatment that he received for his PTSD. Then provide him with VA Form 21-4142, Authorization and Consent to Release Information to the VA, for any identified outstanding and relevant private treatment records. Advise him that he may submit such records if he so chooses. 4. Send the Veteran the appropriate notice as to how to substantiate his request for a TDIU, and send him an additional VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, for completion, with instructions to return the form to the RO. 5. Then, conduct any other development deemed necessary and readjudicate the claims for entitlement to a TDIU and increased rating (higher than 70 percent) for PTSD. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel