Citation Nr: 20007876 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 04-38 023A DATE: January 30, 2020 ORDER Entitlement to an evaluation in excess of 70 percent disabling from March 1, 1989 to July 26, 1994 for posttraumatic stress disorder (PTSD) is denied. 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 February 16, 1979 to July 26, 1994 is denied. FINDINGS OF FACT 1. From March 1, 1989 to July 26, 1994, the Veteran’s PTSD manifested in seriously and severely impaired ability to establish and maintain effective or favorable relationships with people and pronounced and severe impairment in the ability to obtain or retain employment; he was not so adversely affected as to result in virtual isolation in the community 2. The Veteran’s service-connected disability did not prevent him from securing and following substantially gainful occupation from March 3, 1977 to January 21, 1979 and February 16, 1979 to July 26, 1994. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 70 percent disabling from March 1, 1989 to July 26, 1994 for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.16(c) (1990), 4.132, Diagnostic Code (Code) 9411 (1987, 1994). 2. The criteria for entitlement to TDIU from March 3, 1977 to January 21, 1979 and February 16, 1979 to July 26, 1994 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (1975, 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). This case was remanded in September 2018 for further development. The Board notes that there was a typographical error in the characterization of the issue of entitlement to TDIU in its September 2018 remand. The proper appeal periods are from March 3, 1977 to January 21, 1979 and from February 16, 1979 to July 26, 1994. The Veteran asserts that VA illegally reduced a 100 percent evaluation that was granted in the April 2014 rating decision, and, by inference, this matter should be considered a reduction. See, e.g., May 2019 correspondence. The April 2014 rating decision granted an earlier effective date for the grant of service connection for PTSD—as decided by the Board in a February 2014 decision—and assigned initial evaluations for the new period of service-connection. Indeed, it assigned a 100 percent rating and then reduced the rating twice. See April 2014 rating decision. However, this action is not considered a reduction because it was a staged rating involving the simultaneous assignment of higher and lower evaluations for a disorder and an award pursuant to 38 C.F.R. § 4.29. There is no reduction of a rating unless the rating action assigns a disability evaluation which is below that level previously in existence. See Singleton v. Shinseki, 23 Vet. App. 376 (2010); Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009); O’Connell v. Nicholson, 21 Vet. App. 89 (2007). Because this was an initial assigment of an evaluation and the grant of a temporary total evaluation, there was no evaluation previously in existence and the current matter is not considered a rating reduction. 1. Entitlement to an evaluation in excess of 70 percent disabling from March 1, 1989 to July 26, 1994 for PTSD. As an initial matter, this issue was not previously decided by the Board in September 2018 due to the enactment of 38 C.F.R. § 4.16(c), effective March 1, 1989, which provided 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. Because the Board finds that the Veteran was not precluded from securing or following a substantially gainful occupation, see infra, the Veteran is not entitled to a 100 percent rating for PTSD pursuant to 38 C.F.R. § 4.16(c) and this issue should be adjudicated using the schedular criteria under 38 C.F.R. § 4.132 (1987, 1994). Moreover, as the Veteran is currently rated as 70 percent disabling, the Board, in the decision below, will focus solely on what the evidence needs to show to warrant the next highest rating of 100 percent. 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, effective February 3, 1988. 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. Because the current matter stems from an increased rating issue with an appeal period prior to February 3, 1988, see September 2018 Board decision, both pre-and post-revision regulations must be considered even though the current, specific appeal period post-dates February 3, 1988. 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). 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 9411 (1987). 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). 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). 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. As discussed in the Board’s September 2018 decision wherein a 70 percent rating was granted, 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. 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. While the Veteran’s symptoms were cyclical and he had periods of severe symptoms followed by more mild symptoms, the evidence reflects that he was not so adversely affected as to result in virtual isolation in the community during periods of severe symptomatology as is required for the assignment of a 100 percent disability rating. In particular, he appears to have a steady history of work and schooling. While some of his work history may be part-time, the Veteran has established that he is able to maintain contacts at least at a minimum level and that he did not have a gross repudiation of reality with disturbed thought or behavior processes associated with almost all daily activities. Indeed, when obtaining medical assistance, the Veteran consistently appears able to have at least a conversation with the treating professional, indicating that he can communicate with others and is not in isolation. His work history also shows that he is able to obtain and retain some level of employment. Because the evidence reflects that the Veteran’s PTSD symptoms, even when at their worst, manifested in a seriously and severely impaired ability to establish and maintain effective or favorable relationships with people and pronounced and severe impairment in the ability to obtain or retain employment, the Board finds that the criteria for a rating in excess of 70 percent have been met or approximated, and the matter is denied. 2. Entitlement to TDIU from March 3, 1977 to January 21, 1979 and February 16, 1979 to July 26, 1994. TDIU may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to meet the schedular criteria for entitlement, the Veteran must have either: (i) one disability rated at 60 percent or more; or (ii) two or more disabilities, with at least one disability rated at 40 percent or more and sufficient additional disability bringing the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). During the appeal period, 38 C.F.R. § 4.16(a) was amended to include that marginal employment shall not be considered substantially gainful employment and generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a) (1994). The Board acknowledges that the Veteran’s occupational history is incomplete. In its September 2018 remand, the Board requested that the Veteran provide details about his employment history, and whether his employment during the appeal period was part-time. The Agency of Original Jurisdiction (AOJ) requested such information in May 2019 correspondence. The Veteran’s response did not contain the requested information. See May 2019 correspondence. The Board notes that the duty to assist is not a one-way street; the Veteran has a duty to cooperate with VA and facilitate needed development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, the Board finds that all necessary development has been accomplished, and will proceed with appellate review. See Bernard v. Brown, 4 Vet. App. 384 (1993). In 2002, the Veteran submitted a work history. He reported that he worked as a laborer from approximately 1977 to September 1978, then as an operating engineer from September 1978 to March 1983. From 1984 to 1990 he worked at a different organization as a supervisor, and finally from 1984 to 1993, he worked as a floorman at a separate organization. There appear to be other positions he held for a shorter amount of time, such as from September 1991 to July 1992 as an assistance circulation manager. The hours he worked for these jobs and the pay received are not of record. See correspondence received October 2002. The evidence reflects that the Veteran consistently worked during the appeal period. Although his sister reported that his occupational work history is marginal at best, and that he has held approximately 27 jobs in the past 30 years, see December 2002 correspondence, the Board assigns her reports significantly less probative weight than the Veteran’s report of his work history, which reflected him maintaining work at the same job for more than two years, directly contradicting his sister’s report. The medical records corroborate the Veteran’s work history; although his reports in such records consistently included part-time work, he often appears to have work multiple jobs, attended school, and also did volunteer work. See, e.g., August 1989 private treatment records. The evidence of record reflects that the Veteran maintained work during the appeal period and that he could maintain such work, as also evidenced by his schooling and volunteer work. The evidence does not reflect that his employment was in a protected environment or otherwise marginal. His sister’s opinion that his work was marginal is given no probative weight due to the inconsistencies in her statement and the Veteran’s own report. The Veteran is reminded that he ultimately bears some burden of production and the evidence does not reflect his work was marginal. 38 U.S.C. § 5107(a); Cromer v. Nicholson, 455 F.3d 1346 (Fed. Cir. 2006). Thus, the evidence of record reflects that he was capable of securing and following substantially gainful occupation. Because the Veteran was able to secure and follow substantially gainful occupation during the appeal period, the matter must be denied. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.