Citation Nr: 20053418 Decision Date: 08/12/20 Archive Date: 08/12/20 DOCKET NO. 14-15 489 DATE: August 12, 2020 ORDER Entitlement to a 70 percent rating service-connected posttraumatic stress disorder (PTSD) is granted. Entitlement to TDIU is granted effective August 11, 2010. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s PTSD has been manifested by symptoms of irritability, impatience, anger, intrusive thoughts, social avoidance, depressive symptoms, flashbacks, crying spells, restlessness, poor concentration, lack of motivation, hypervigilance, easy startle, grumpiness, sarcastic attitude, argumentativeness and feeling wounded which has more nearly approximated occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, and mood due to such symptoms as difficulty in adapting to stressful situations including work and an inability to establish and maintain effective relationships. 2. Resolving all reasonable doubt in the Veteran’s favor, the evidence establishes that the Veteran’s service-connected disabilities have rendered him unable to secure and follow substantially gainful employment since August 11, 2010. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for a 70 percent rating for service-connected PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. 2. The criteria for TDIU have been met effective August 11, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1966 to December 1969, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The RO in St. Petersburg, Florida has assumed the role of Agency of Original Jurisdiction (AOJ). This appeal was previously before the Board in January 2018, at which time it was remanded for additional evidentiary development. It has now been returned to the Board for appellate adjudication. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). During the appeal period, the Veteran’s PTSD has been assigned staged ratings pursuant to Diagnostic Code 9411. All psychiatric disorders are evaluated under a general rating formula for mental disorders. 38 C.F.R. § 4.130. Under the general rating formula, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation, 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, or recent events. 38 C.F.R. § 4.130, 9434. A 50 percent rating 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful situations (including work or a work-like setting); and inability to establish and maintain effective relationships. Finally, a total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and “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.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Further, “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Thus, “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. at 118. As such, the Board will consider both the Veteran’s specific symptomatology as well as the occupational and social impairment associated with the rating code to determine whether an increased evaluation is warranted. The nomenclature employed in the portion of VA’s Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as “DSM-IV”). 38 C.F.R. § 4.130. DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. The Board notes that DSM-IV has been updated with a Fifth Edition (DSM-V). Effective August 4, 2014, VA issued an interim rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to refer to certain mental disorders in accordance with DSM-V. The provisions of the interim final rule only apply, however, to all applications for benefits that are received by VA or that are pending before the AOJ on or after August 4, 2014. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). The claim on appeal was originally certified to the Board prior to on August 13, 2014. Thus, the DSM-V criteria apply to this claim and the Board may not consider the evidentiary value of any GAF scores. Golden v. Shulkin, 29 Vet. App. 221, 225 (2018). Historically, the Veteran filed a claim for service connection for PTSD in March 2010. In a June 2010 mental health comprehensive assessment, the Veteran endorsed increased irritability, impatience, and anger. He stated that he often thought about his service in Vietnam and avoided being around other people. The clinician noted that the Veteran endorsed depressive symptoms of sad mood, irregular appetite, and decreased energy. Although there was no evidence of manic symptoms or suicidal ideations, he did report intrusive thoughts several times per week, along with nightmares twice a month. At the July 2010 VA examination, the Veteran reported a history of two prior failed marriages, and having a “very good” marriage to his third wife of the past 22 years. He was working full-time but considering retirement. The Veteran described himself as “angry, tense, [and] impatient.” He also stated that he had flashbacks and was often sad. The mental status examination revealed that the Veteran was oriented on all spheres with no hallucinations or psychoses. He endorsed an affect of mild irritability but there was no evidence of suicidal or homicidal ideations or mania or panic attacks. The Veteran indicated that he did sleep eight hours per day, albeit disrupted. In addition to irritability, the Veteran stated that he cried four to five times per week. His hobbies included riding his motorcycle and traveling; he described having a good relationship with his family. While the Veteran did not belong to any groups or social clubs, he did have one close friend and indicated that he was causally friendly with his neighbors. The Veteran last worked full-time as an equipment operator on August 10, 2010. In pertinent part, a September 2010 VA mental health consultation noted that the Veteran had been adjusting to retirement and noted that he gave up a good paying job. He reported enjoying not disagreeing with people at work and not wanting to keep guys hustling. His wife described his mood as grumpy, inpatient, sarcastic and feeling wounded. The Veteran had been waking up in the middle of the night. There was a general description of a worsening of symptoms since retiring. In December 2010, the Veteran’s clinician described him as appearing generally restless which was mild in severity and anxious in mood. In July 2011, the Veteran described a stressful marital relationship due to his irritability and impatience. He reported additional symptoms of poor concentration. He described retiring in August due to concentration, irritability and anger problems. He was subsequently described as having extreme anxiety symptoms continually feeling jumpy with an inability to sleep through the night. The Veteran further described being forced to retire for forgetting things such as important numbers, being easily distracted, having difficulty concentrating and starting many projects but finishing none. The Veteran also reported additional symptoms of poor self-esteem and poor concentration noting an increase of symptoms probably due to Veteran’s Day. In a statement received in November 2013, the Veteran’s spouse described a worsening of stress and disagreements with her husband. Thereafter, the Veteran reported continued sleep problems and nightmares, along with anger and anxiety. His symptoms were treated with medication and the clinician indicated that the Veteran’s symptoms were generally in the mild to moderate range. The Veteran maintained a good relationship with his wife, children, and grandchildren. He denied suicidal ideation and his mental status examinations were within normal limits. See VA Treatment Records dated December 11, 2012, April 9, 2013, November 5, 2013 and December 4, 2013. In an April 2014 written statement, the Veteran reported that he had persistent symptoms of hyperarousal, disrupted sleep patterns, anger, irritability, and impaired concentration, along with hypervigilance and exaggerated startled response. He stated that his symptoms resulted in great difficulty forming and maintaining close relationships, leading to two divorces. He described having memory impairment and lack of motivation, which led to his forced retirement after 20 years. With respect to memory and concentration difficulties, he provided examples such as forgetting which runways and taxiways he was supposed to navigate, misjudge weight limits and forgetting instructions being relayed. In an April 2015 psychotherapy treatment note, the Veteran reported ongoing trouble with anger and irritability. He also endorsed sleep disturbance and nightmares. Although his mood was noted as depressed, his mental status examination was within normal limits and the Veteran denied any suicidal and homicidal ideations. In a September 2015 treatment note, the Veteran reported difficulties with irritability and hypervigilance. He stated that he had difficulty sleeping due to nightmares and often avoided trauma-related stimuli. He also stated that he had some depressive symptoms at times, but such symptoms were typically manageable with medications. The Veteran reported having supportive family members and denied suicidal or homicidal ideations, plans, or intent. He presented with normal speech and logical thought processes. His mood was noted as depressed and anxious; however, his insight, judgment, and cognition were within normal limits. At the June 2017 Board hearing, the Veteran testified that the symptoms of his PTSD had increased in severity. Specifically, he indicated that due to his PTSD, he did not maintain many social relationships. He had a good relationship with his wife, but he did not socialize with people outside of his family. He also described having memory impairment and decreased concentration along with a lack of motivation, nightmares, and flashbacks. He stated that he was hypervigilant in public places and often sat near the exit. In an August 2017 Disability Benefits Questionnaire and accompanying written statement, a private psychologist, Dr. R.W.P., indicated that the Veteran endorsed gross impairment in his communication abilities, the danger of grossly inappropriate behavior, and persistent danger of hurting himself. Dr. R.W.P. also noted that the Veteran’s anger was uncontrollable and in addition to rage and depression, the Veteran often lost his train of thought and forgot directions. He was unable to interact with others due to his poor impulse control. The Veteran described his relationship with his wife and children was strained due to his symptoms. The physician indicated that the Veteran endorsed panic attacks more than once per week, memory impairment, impaired speech and thinking, impaired impulse control, and neglect in his personal hygiene. Ultimately, the examiner found that the Veteran’s PTSD caused total social and occupational impairment. In subsequent treatment records, the Veteran reported having sleep disturbance and nightmares twice a week and intrusive memories, along with “flashes of anger” and feeling lethargic and sad. While he did not have suicidal ideation, he did endorse avoidance symptoms and long-standing hypervigilance. He remained oriented on all spheres and denied obsessive thoughts or compulsions. There was no evidence of hallucinations, delusions, or psychoses. His speech and thought processes remained logical and his judgement, insight, and impulse control remained intact and within normal limits. His hobbies included going for walks, going to open houses, going to movies, and going out to dinner. See VA Treatment Records dated February 1, 2018, March 19, 2018, April 11, 2018, May 4, 2018, May 8, 2018, At the August 2018 VA examination, the Veteran reported having nightmares and intrusive thoughts about his experiences in Vietnam. Socially, the Veteran maintained a good relationship with his wife but stated that he was estranged from his children. He manifested panic attacks more than once per week, along with depressed mood, anxiety, chronic sleep impairment, and difficulty establishing and maintaining effective relationships. Upon mental status examination, the Veteran was oriented on all spheres and did not endorse any thought or speech impairment. He denied suicidal ideation and did not demonstrate any significant impairment in cognitive or memory functioning. There was no evidence of any thought disorder, to include hallucinations or delusions and the Veteran did not endorse any overt depression or anxiety. The examiner found that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. Most recently, the Veteran continued to report sleep disturbances, depression, and anxiety. He continued to take his medication to alleviate his symptoms. There was no evidence of hallucinations, delusions, or psychoses. He had a low risk of suicide and violent tendencies. His mental status examinations yielded normal results. See VA Treatment Records dated May 24, 2019 and November 8, 2019. Upon consideration of the evidence, the Board finds that a uniform 70 percent rating is warranted for the entire appeal period. In this respect, the Veteran has credibly reported that, since the inception of the appeal, that he has manifested symptoms of irritability, impatience, anger, intrusive thoughts, social avoidance, depressive symptoms, flashbacks, crying spells, restlessness, poor concentration, lack of motivation, hypervigilance, and easy startle. His spouse additionally described grumpiness, being sarcastic and argumentative, and feeling wounded. A VA examiner described the Veteran as manifesting “extreme” anxiety. The Veteran reported retiring, in part, due to workplace interference caused by his PTSD. His social contacts were very limited mainly consisting of his marital relationship, which was described as strained. Overall, the lay and medical evidence more nearly approximated occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to such symptoms as difficulty in adapting to stressful situations including work and an inability to establish and maintain effective relationships. However, the Board finds that the criteria for a rating in excess of 100 percent have not been met for any time during the appeal period. In this respect, the Board acknowledges the August 2017 private treatment report, which indicates that the Veteran’s PTSD manifests in total occupational and social impairment. However, the Board finds that the probative value of this evaluation and opinion is outweighed by that of the remaining lay and medical evidence of record. The August 2017 private physician indicated that the Veteran’s PTSD was evidenced by significant impairment to his speech, thought processes, impulse control and overall general functioning. The examiner did not provide any specific examples supporting these conclusions, and the extensive lay and medical evidence before and after this report does not reflect that such symptomatology has been frequent or long in duration. Treatment records and evaluations before and after this report reflect that the Veteran remained oriented on all spheres. He was clear and coherent in his speech and did not endorse any impairment to his thought content or processes. He denied violent behavior or suicidal or homicidal ideation. The Veteran does manifest memory and concentration impairment, but not to the level of disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. Rather, the Veteran has provided examples such as not completing tasks and forgetting work instructions, important numbers and which runways his vehicle should be on. Additionally, the Veteran has strained relations with his spouse but there is not “total” social impairment. He clearly has significant work limitations caused by his PTSD but the Board finds persuasive the VA opinion that the Veteran has some work capacity with accommodations being made. The issue of whether those work accommodations are practical to render him capable of substantially gainful employment given the Veteran’s educational and vocational experience is addressed below regarding the issue of entitlement to TDIU. Thus, the probative value of the August 2017 private examination and accompanying written statement are substantially outweighed by the remaining evidence of record, including the lay witness accounts by the Veteran and his spouse. For the forgoing reasons, the preponderance of the evidence reflects that the Veteran’s PTSD has not met, or more nearly approximated, the criteria for a 100 percent rating for any time during the appeal period. Entitlement to TDIU TDIU is authorized for any disability or combination of disabilities where the schedular rating is less than total, and the claimant is unable to secure and maintain substantially gainful employment because of the severity of service-connected disabilities. If there is only one such disability, it must be rated as at least 60 percent. If two or more disabilities, at least one must be rated as at least 40 percent disabling, with sufficient additional service-connected disability to bring the combined rating to 70 percent. 38 C.F.R. §§ 4.15, 4.16(a). Disabilities from a common cause are considered one disability when determining if minimum rating requirements are met. If a claimant does not meet the minimum rating requirements of 38 C.F.R. § 4.16(a) for TDIU on a schedular basis, he can still establish a TDIU on an extraschedular basis. An extraschedular rating is warranted when the case presents such an unusual disability picture with related factors such as marked interference with employment as to render impractical the application of the regular schedular standards. Id. For a TDIU, the critical question is whether the Veteran’s service-connected disabilities alone are sufficient to cause unemployability, not any nonservice-connected condition. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration include his employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). As held above, the Board has found that the Veteran has met the criteria for a 70 percent rating for the entire appeal period. As such, he is eligible for consideration of a schedular TDIU rating. The Veteran is service connected for PTSD, rated 70 percent disabling; diabetes, rated 20 percent disabling; tinnitus, rated 10 percent disabling; and hearing loss and erectile dysfunction, both rated noncompensable. Upon review of the evidence of record and after resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran’s service-connected disabilities prevent him from securing substantial gainful employment and an extraschedular TDIU is warranted. The record reflects that upon discharge from service, the Veteran worked full time as a construction worker for 10 years. Subsequently, from 1980 until approximately 2010, when he retired, the Veteran worked for both the Army National Guard and the Coast Guard as a civilian equipment operator. See VA Examination dated July 2010. The Veteran has testified that he has a commercial driver’s license; there is no evidence of any other formal education or training. Since his retirement, the Veteran testified that he retired due to his difficulty concentration and his inability to work well with others. He indicated that he often had conflict with his supervisors and coworkers due to his PTSD symptoms of anger and irritability, along with his lack of motivation and impaired memory. See VA Form 9 dated April 23, 2014; VA Treatment Records dated August 10, 2011 and December 30, 2011; Board Hearing Transcript, pp. 5-12. There are several medical opinions addressing whether the Veteran’s service-connected disabilities render him unemployable. At the July 2010 VA psychiatric examination, the clinician found that the Veteran’s PTSD had no negative impact on his ability to maintain substantially gainful employment, as the Veteran’s impairment caused minimal interference with his social functioning. At the contemporaneous VA audiological examination, the clinician found that the Veteran was employable in non-adverse listening environments with appropriate accommodations. At the August 2018 VA psychiatric examination, the examiner opined that the Veteran had difficulty functioning on his job as a civilian employee of the Coast Guard as exposure to the military equipment provoked his PTSD symptoms. The examiner found that the Veteran’ retired “in part due to” his difficulty functioning effectively at work. In a February 2020 Memorandum from the VA Decision Review Operations Center (DROC) to the Director of Compensation, the DROC recommended that the Veteran was entitled to TDIU. In so finding, the DROC noted all the relevant evidence of record, to include objective medical evidence along with lay witness statements, and ultimately found that the evidence established that the Veteran’s PTSD, specifically his memory issues, impaired his ability to work in his trained field. In the February 2020 Advisory Opinion, the Director accurately detailed the medical evidence of record. Specifically, the Director noted that the Veteran’s 50 percent rating resulted in impairment that make it “difficulty to obtain and keep employment.” However, the Director found that, based on the August 2018 VA psychiatric examination, the Veteran’s PTSD played a part in the Veteran’s retirement but did not solely cause the Veteran’s retirement. As a result, the Director found that the overall evidence failed to establish that the Veteran’s service-connected disabilities prevented gainful employment. Based on the above, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s service-connected disabilities, specifically his PTSD, prevents him from gaining and maintaining gainful employment. In so finding, the Board acknowledges the February 2020 Advisory Opinion, in which the Director found that the Veteran was not entitled to TDIU on a schedular basis. However, while the opinion is well-reasoned and detailed, it is solely based on the August 2018 medical opinion, rather than all the medical and lay evidence of record. As such, the use of a single medical opinion renders it of little probative value. See Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009). Additionally, for over 40 years, the Veteran worked as both a construction worker and an equipment operator. The Board finds that such vocations require significant concentration and the ability to work and collaborate with others. Both the medical and lay evidence of record establishes that the Veteran’s impairment caused by PTSD significantly impairs his ability to socialize with other people, much less work with them on a daily basis. Both lines of work also require a high level of concentration and accuracy; the Veteran’s memory and concentration impairment would likely impede his ability to maintain employment in either vocation. Further, as he has done such work for most of his life, it is unlikely that he would be able to obtain substantially gainful employment in another line of work. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the instant case, the evidence indicates that it is as at least in equipoise whether the Veteran would have been precluded from substantially gainful employment solely due to his service-connected disabilities. After resolving the benefit of the doubt in favor of the Veteran, an extraschedular TDIU is warranted. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Orie, 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.