Citation Nr: 20021370 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 15-45 977 DATE: March 25, 2020 ORDER Entitlement to a rating higher than 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU) is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The most probative evidence of record indicates that the Veteran’s psychiatric disability has been manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. 2. The Veteran is unable to obtain and maintain any form of substantially gainful employment due solely to the effects of his service-connected psychiatric disability. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 70 percent for PTSD, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2018). 2. The criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1963 to June 1966. These matters are on appeal from March 2015 and April 2015 rating decisions. In October 2018, these matters were remanded by the Board for further development, to include the adjudication of the issue of propriety of the reduction of the 70 percent rating for the Veteran’s service-connected PTSD to 30 percent, effective June 1, 2015. The 70 percent rating was fully restored in a November 2019 Decision Review Officer decision. As such, the issue of the propriety of the reduction is now moot. Increased Rating Claim Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also 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). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2018). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2018). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2018). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In this case, the Veteran has claimed that his service-connected PTSD is more severe than her currently assigned 70 percent evaluation. Evaluations for various psychiatric disabilities are assigned pursuant to 38 C.F.R. § 4.130. Under the general rating formula for mental disorders, a rating of 30 percent is assigned when there is occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of 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, mild memory loss (such as forgetting names, directions, recent events). A rating of 50 percent is assigned 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 rating of 70 percent is assigned where 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 inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. A 100 percent schedular evaluation contemplates 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. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The RO certified the Veteran’s appeal to the Board in February 2016, therefore the claim is governed by DSM-V. Nonetheless, the Board notes that the use of GAF scores has been abandoned in the DSM-5 because of, among other reasons, “its conceptual lack of clarity” and “questionable psychometrics in routine practice.” See Diagnostic and Statistical Manual for Mental Disorders, Fifth edition, p. 16 (2013). In this case, although DSM-IV was in use at the time the medical entries of record were made, during the period on appeal GAF scores were not provided for the Veteran’s PTSD. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has embraced the Mauerhan Court’s interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) provided additional guidance in rating psychiatric disability. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Specifically, 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. Id. at 2. 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. Id. at 4. 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. Id. at 2. When it is not possible to separate the effects of a nonservice-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant’s favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Turning to the merits of the claim, on December 2014 VA PTSD Disability Benefits Questionnaire (DBQ) examination the examining psychologist opined that there was no significant change since in his condition since his last VA examination. Regarding social, marital and family history, the Veteran continued to reside with his wife of eight years. He reported a very close relationship with his two sons and remained close to his four siblings. He did not have many friends. His leisure pursuits included going online to view military aviation equipment, listening to music, reading, watching television, and helping around the house within the limits of his physical challenges. The Veteran and his wife enjoyed occasionally going out. He continued to be a member of the VFW and Masonic Lodge, but was no longer active in either organization primarily due to medical issues. Regarding his occupational history, he worked part-time for his brother who owned a bus and limousine business. He last drove a bus a month ago. He had difficulty sitting for prolonged periods of time due to prostate and leg pain. The examining psychologist opined that the Veteran’s level of occupational and social impairment was best summarized by 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; criteria which warrant the assignment of a 50 percent rating. For VA rating purposes his symptoms included depressed mood and suicidal ideation; symptoms which warrant the assignment of a 70 percent rating. Behavioral observations showed that he presented as a casually dressed, neatly groomed man. Affect was euthymic with occasional teariness. Mood was described as “worried” which he attributed to living on a fixed income and concern about paying his bills. Hallucinations, delusions, and homicidal ideations were denied. Suicidal ideations were fleeting though he identified a method (firearm). He denied intent to regard for his family. In an April 2015 addendum, the December 2014 VA psychologist opined that with regard to the Veteran’s PTSD, there were no physical tasks that were functionally impaired. However, sedentary functioning would be negatively affected by high stress fast paced tasks in environments with large groups of people. Pursuant to the Board’s October 2018 remand, on October 2019 VA PTSD DBQ examination, the Veteran’s mental health history included occasional passive suicidal ideations without plans, intent, or attempts. He was not currently in psychotherapy nor was he prescribed psychiatric medication. However, he had experienced an increased decline in physical functioning which contributed to his low mood, social withdrawal, anxiety, worry, and flashbacks. Regarding social/marital/family history, the Veteran reported a decline in his social life and described marital life as “okay.” Regarding his occupational and educational history, he last drove a bus for work more than 18 months ago (summer of 2018). The examining psychologist opined that the Veteran’s level of occupational and social impairment was best summarized by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood; criteria which warrant the assignment of a 70 percent rating. For VA rating purposes his symptoms included depressed mood; anxiety; chronic sleep impairment; flattened affect; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; inability to establish and maintain effective relationships; and suicidal ideation; symptoms which warrant the assignment of a 50 percent or 70 percent rating. Behavioral observations showed that the Veteran arrived on time and used a walker to ambulate. Affect was flat; however, he was pleasant and cooperative. Speech was short, but organized and appropriate with normal rate, tone, and rhythm. He was oriented to person, place, date, time, and season. There were no disturbances of thought. He appeared anxious and talked about having a low mood which interfered with his functioning. The examiner diagnosed PTSD and unspecified depressive disorder. It was not possible to differentiate which symptoms were attributable to each diagnosis. The examiner opined that his PTSD symptoms contributed to being unable to work for over 18 months with decreased work activity for the past 4 years. His symptoms negatively affected major areas of his life including physical and mental well-being, social interactions, and general self-respect. After review of the evidence, the Board finds that a higher evaluation of 100 percent for the Veteran’s psychiatric disability is not warranted. In this regard, the December 2014 and October 2019 VA examining psychologists that the Veteran’s psychiatric disability is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood; criteria which warrant the assignment of a 70% disability evaluation. In this case, there was no evidence of such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; persistent danger of hurting self or others; or disorientation to time or place. The Board fully recognizes that the listed symptoms for a 100 percent schedular rating are not all encompassing, and their presence is not necessarily determinative. However, the Veteran’s symptoms must cause the occupational and social impairment in the referenced areas. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). While total occupational impairment due to his psychiatric disability has been demonstrated, as will be discussed in further detail below, total social impairment, as contemplated by the rating criteria, is simply not shown or even approximated. It is important for the Veteran to understand that a disability evaluation of 70 percent will cause him many problems and that this fact is not in dispute. If there were no problems associated with his disability during this period, there would be no basis for a compensable evaluation (zero), let alone a 70 percent evaluation. The Veteran’s statements made during the VA examinations in many respects support either a 50% or 70% evaluation, not a 100% finding. The critical question in this case, however, is whether the problems the Veteran has believably cited meet an even higher, 100 percent, level under the rating criteria. For reasons cited above, they do not, for any part of the rating period. TDIU The Veteran has alleged that he is unemployable due to his service-connected PTSD. See, June 2014 VA Form 21-8940. The Board notes that the TDIU claim was denied by the RO in an April 2015 rating decision. However, when a veteran submits a claim seeking an increased rating for a service-connected medical disability, it is construed as a claim for the highest rating possible to include entitlement to TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). VA regulations allow for the assignment of a total disability rating based on individual unemployability when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Marginal employment shall not be considered substantially gainful employment. In this case, the Veteran is currently unemployed. He is service-connected for PTSD, rated 70% disabling; painful shrapnel scars of the left wrist and anterior shin, rated 20% disabling; and superficial, linear scars of the left wrist and left anterior shin, rated as noncompensable. His total combined rating is 80%. Accordingly, the Veteran meets the minimum schedular requirements for TDIU. See 38 C.F.R. § 4.16 (a). Based on the lay and medical evidence of record and the Veteran’s current combined disability rating of 80 percent, the Board finds the Veteran’s combined disability picture renders him unemployable. In resolving all doubt in favor of the Veteran, the Board finds that entitlement to a TDIU is warranted. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.