Citation Nr: 21004672 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 13-18 735A DATE: January 27, 2021 ORDER An initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT For the entire appeal period, the Veteran’s PTSD was manifested by psychiatric symptomatology resulting in occupational and social impairment with reduced reliability and productivity, without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2010 by a Department of Veterans Affairs (VA) Regional Office. In April 2016, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In June 2016 and December 2018, the Board remanded the case for additional development and it now returns for further appellate review. 1. Entitlement to an initial rating in excess of 50 percent for PTSD. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155, 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. When there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found – a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran’s PTSD is evaluated as 50 percent disabling, as of March 26, 2009, the date of service connection, pursuant to the criteria of Diagnostic Code 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders (General Rating Formula) at 38 C.F.R. § 4.130. In this regard, a 50 percent rating is warranted when there is 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; impairments of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted when 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; intermittently illogical, obscure, or irrelevant speech; 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); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is 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. The Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. See Vazquez–Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination.” 38 C.F.R. § 4.126(a). The Board notes that the revised DSM-5, which, among other things, eliminates Global Assessment of Functioning (GAF) scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (August 4, 2014). Consequently, the Board will not consider the previously assigned GAF scores in determining the outcome of this case. See Golden v. Shulkin, 29 Vet. App. 221 (2018). Turning to the evidence of record, treatment records indicate the Veteran began receiving treatment in March 2009 for his PTSD. Specifically, he attended individual counseling, group sessions for about 5 1/2 years, and he was hospitalized in February 2009 for a few weeks. Such further reflect that the Veteran reported experiencing symptoms of depression, anxiety, sleep impairment, flashbacks, irritable behavior, and impaired impulse control; however, he has consistently denied suicidal thoughts or behavior. Specifically, immediately prior to the award of service connection, the Veteran was hospitalized with increased agitation and depression from February 13, 2009, to March 3, 2009, at which time he was diagnosed with major depressive disorder and PTSD. He reported that the hospitalization was a result of stress at work following a change of management. In this regard, the Veteran indicated that such resulted in irritability, an inability to control his anger, and thoughts of physical harm to others, which ultimately led to disciplinary action. The Board notes that the February 2009 disciplinary action supports the Veteran’s behavior and symptoms, as such reflects that he behaved in an unacceptable manner on two occasions in January 2009, to include engaging in fist pounding, yelling, and provoking other employees and members of supervision, and speaking in a loud and forceful voice. At the time of admission in February 2009, it was noted that the Veteran was being admitted for evaluation and treatment of depression, suicidal, and aggressive thought process. During his hospitalization, it was noted that the Veteran was married with a very supportive family and had worked at Delmarva for 38 years before retiring. It was further observed that he had been with his present company for two years and planned to retire at the end of March 2009. The Veteran reported that he was feeling depressed with depressed mood, anxiety, shortness of breath, feeling very threatened, and difficulty sleeping. While he indicated that he had thoughts of eliminating the threats, there was no particular plan. The discharge report noted that the Veteran was communicative and cooperative with normal speech. He was oriented to time, place and person, and memory and cognitive testing was normal. The Veteran denied hallucinations, delusional ideations, and suicidal thoughts. Throughout his hospitalization, the Veteran actively participated in group therapy, interacted appropriately with peers and staff, showed gradual improvement in affect and mood, and appeared motivated to continue treatment following discharge. In June 2010, the Veteran underwent a VA examination in connection with his claim for service connection. At such time, the examiner noted multiple mental disorders, to include major depression; however, such were found to be associated to the Veteran’s PTSD. The Veteran endorsed symptoms of intrusive recollections of his time in Vietnam, avoidance, hyperarousal, feeling depressed, difficulty sleeping, irritability, and problems with attention and concentration, which occurred daily and were of a moderate severity and constant duration. He also reported that he periodically had issues with supervisors, authority figures, and coworkers because of his PTSD. However, the Veteran reported that he had worked at a utility company for 41 years, did not lose time from work because of his PTSD, and retired in May 2010 (which appears to be a typo as the remainder of the evidence of record indicates that he retired in May 2009). The examiner indicated that the effects of the Veteran’s PTSD symptoms on his occupational functioning were minimal. It was further observed that the Veteran did not have many friends, and the quality or degree of his social relationships was considered moderately impaired due to PTSD. In this regard, he liked to stay by himself and avoided large crowds. Mental status examination revealed that thought process and communication were not impaired, behavior was adequate, there were no memory deficiencies, hygiene was good, speech was normal, there were no hallucinations, delusions, obsessions, compulsions, or suicidal or homicidal ideations, insight and judgment were well preserved, and he was fully orientated to person, place, and time. However, it was observed that he exhibited unprovoked irritability, but had no history of personal violence, and his cognitive functions were considered mildly to moderately impaired in the area of concentration and attention. Ultimately, the examiner concluded that the Veteran’s PTSD resulted in feelings of helplessness and hopelessness with depressed mood, which led to moderate difficulties in his social functioning mostly. In a December 2010 statement, the Veteran reported that his PTSD causes him to be very intolerant with any form of supervision and prevented him from seeking work due to the fear of future disciplinary actions and/or possibly harming someone. In November 2012, the Veteran submitted a Disability Benefits Questionnaire (DBQ), completed by his private treatment provider, T.W. a licensed clinical social worker. At the time, she reported a diagnosis of major depressive disorder and PTSD, and noted that, although there is overlap between symptoms of depression and avoidance cluster of PTSD symptoms, both conditions were caused or exacerbated by the Veteran’s service in Vietnam. At such time, the Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and impaired impulse control, such as unprovoked irritability with periods of violence. It was noted that the Veteran was married, but was increasingly isolated due to deaths of family members. It was further observed that the Veteran worked as an electrician, but retired in 2009, and, while he served for 35 years as a volunteer in the fire department, traumatic events in such position led to a worsening of his PTSD and, thus, he avoided volunteer occupational activities. Overall, T.W. found that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity, which is consistent with a 50 percent rating under the General Rating Formula. In an April 2014 letter, T.W. indicated that the Veteran’s PTSD was stable, but chronic and, despite treatment, he remains uncomfortable in crowds and prefers the safety of his home. She further reported that he continues to experience disturbances in motivation and mood, e.g., periods of irritability, depression, and social isolation, and has difficulty to adapting to stressful circumstances. However, in order to satisfy his spouse’s needs, he pushed himself to engage in social and recreational activities, but at a reduced level. Finally, T.W. noted that the Veteran reported that he felt that he must stay on medication in order to prevent angry outbursts/irritability. Ultimately, she found that the Veteran had occupational and social impairment with reduced reliability and productivity due to his PTSD. At the April 2014 Board hearing, the Veteran testified that, due to the symptoms of his PTSD, he was unable to work and was prompted to retire. In this regard, he indicated that he worked at the same company for most of his career, but became frustrated with the workplace culture and felt like he could not control himself from physical violence. The Veteran also reported that he had a difficult time speaking and expressing his feelings at group counseling and ultimately ended therapy. While the Veteran reported that he had been married for 47 years, he does not have children, close friends, or other family. He does not like to be around other people and prefers to stay at home and out of the public. His spouse also testified that they do not socialize often and prefer to stay at home. The Veteran further reported that he has recurring nightmares and dreams of incidents that occurred while in Vietnam, which have gotten more vivid and severe. He expressed concern over his anger and fear that he would not be able to control his rage if he interacted with other people, and therefore, isolates himself. Thereafter, the Veteran underwent another VA examination in April 2016, at which time PTSD and unspecified depressive disorder were diagnosed, but the examiner was unable to differentiate the symptoms, or resulting functional impairment, attributed to each disorder. As pertinent to the Veteran’s social functioning, the Veteran reported that he has difficulty trusting others and was hypervigilance, and no longer attends group therapy because he was upsetting others. However, the examiner observed that he stayed in regular contact via email, internet, and yearly reunions with fellow veterans. It was also noted that he liked to take trips to fish and had recently returned from one such trip with his spouse. In regard to his occupational functioning, it was noted that the Veteran last worked in 2009, at which time he had significant difficulty with the new management at his company. The Veteran reported symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. Upon mental status examination, the examiner noted that the Veteran was casually dressed, maintained adequate personal hygiene, speech was spontaneous with normal rate and tone, thought processes were logical, coherent and goal oriented, cognitive function was normal, and insight and judgment were intact. No hallucinations, delusions, suicidal ideations, obsession, or compulsions were noted. Ultimately, the examiner found that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity, which is consistent with a 50 percent rating under the General Rating Formula. Private treatment records dated throughout the appeal period reflect that the Veteran’s depression and PTSD were stable, with euthymic mood, normal speech, normal thought processes, average cognitive function, and no sleep issues. Private treatment records dated in January 2017 noted that the Veteran denied depression, insomnia, lack of interest, anxiety, flight of ideas, frightening visions or sounds, and thoughts of suicide or violence. Upon examination, the Veteran was alert and cooperative with normal mood, attention span, and concentration. VA treatment records dated from July 2013 through March 2018 reflect that the Veteran’s depression was noted to be stable and, while his PTSD was chronic and symptomatic, he was functional. Mental status examinations were generally within normal limits with an irritable mood, as well as fair insight and judgment, noted at times. In January 2019, the Veteran reported ongoing nightmares, but denied suicidal and homicidal ideation. Mental status examination was within normal limits and the treatment provider noted a diagnosis of PTSD and moderate recurrent major depression. Vet Center records dated throughout the appeal period reflect the Veteran’s ongoing complaints of sleep disturbances, nightmares, anxiety, and irritability. Such also reflect treatment plans related to managing his anger, frustration, and irritability, improving his sleep, avoiding triggers, feeling less guilt, connecting with others. It was further noted that the Veteran and his spouse enjoyed participating in social activities with other veterans at the Vet Center, and traveling and fishing together. Such also show that the Veteran participated in group therapy from March 2009 to October 2015, but he thereafter discontinued such aspect of his treatment as he felt cut off and did not feel good after group, the way other participants did. Nonetheless, he has continued to engage in individual therapy. Based on the foregoing, the Board finds that an initial rating in excess of 50 percent for the Veteran’s PTSD is not warranted. In this regard, the record reflects that, during such time, his PTSD was manifested by psychiatric symptomatology including, but no limited to, depression, anxiety, suspiciousness, chronic sleep impairment, nightmares, isolation behavior, hypervigilance, flattened affect, unprovoked irritability without periods of violence, mild to moderate impairment in concentration and attention, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, which results in no more than occupational and social impairment with reduced reliability and productivity. In this regard, the entirety of the Veteran’s PTSD symptomatology is contemplated in the currently assigned 50 percent rating under the General Rating Formula. In reaching such determination, the Board notes that the February 2009 admission report reflects that the Veteran was suicidal at the time of his hospitalization; however, such symptomatology was not noted at the time of his discharge in March 2009, or at any point during the appeal period stemming from the March 26, 2009, date of service connection. The Board also notes that T.W. indicated in the November 2012 DBQ that the Veteran experiences impaired impulse control, such as unprovoked irritability with periods of violence, which is indicative of a 70 percent rating under the General Rating Formula. However, while the Board acknowledges that the Veteran experiences impaired impulse control, such is primarily manifested by irritability and angry outbursts, and does not result in violence. In this regard, at his June 2010 VA examination, it was observed that he did not have a history of violence. Furthermore, as discussed further below, the Board finds that the nature of such symptomatology does not more nearly approximate occupational and social impairment with deficiencies, or total occupational and social impairment. In regard to his occupational functioning, the record shows that the Veteran worked as an electrician planner for over 40 years at two separate companies, and ultimately retired in May 2009. In this regard, while the June 2010 VA examiner noted that the Veteran did not lose time from work because of his PTSD and the effect of his psychiatric symptoms on his occupational functioning was minimal, the record also shows that he reported that he periodically had issues with supervisors, authority figures, and coworkers because of his PTSD. In this regard, he testified at the April 2014 Board hearing that his PTSD symptoms led to his retirement as he became frustrated with the workplace culture and felt like he could not control himself from physical violence. Such report is consistent with the February 2009 disciplinary action that reflects that the Veteran behaved in an unacceptable manner on two occasions in January 2009, to include engaging in fist pounding, yelling, and provoking other employees and members of supervision, and speaking in a loud and forceful voice. Furthermore, such episode led to the Veteran’s hospitalization later that month for stress at work following a change of management due to symptoms of irritability, an inability to control his anger, and thoughts of physical harm to others. Thus, in light of such reports, the Board finds that, as the evidence suggests that the Veteran may be unable to secure or follow a substantially gainful occupation due to his PTSD, the Board has remanded his claim for a TDIU for referral to the Director of Compensation for extra-schedular consideration. However, the Board finds that, at no point during the appeal period has the Veteran’s PTSD resulted in social impairment with deficiencies in most areas, or total social impairment. Specifically, the evidence demonstrates that the Veteran has maintained a long-term relationship with his spouse throughout the appeal period and, while he has a limited social life, the record reflects that he engaged in social and recreational activities with his spouse, stayed in regular contact via email, internet, and yearly reunions with fellow veterans, and enjoyed participating in social activities with other veterans at the Vet Center, and traveling and fishing with his spouse. Moreover, the June 2010 VA examiner observed that, while the Veteran did not have many friends, and the quality or degree of his social relationships was considered only moderately impaired due to PTSD, and, as relevant, T.W. and the April 2016 VA examiner found that the Veteran’s PTSD resulted in, at most, social impairment with reduced reliability and productivity. Therefore, based on the foregoing, the Board finds the nature, frequency, duration, and severity of the Veteran’s psychiatric symptomatology does not more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. Consequently, a rating in excess of 50 percent for his PTSD is not warranted under the General Rating Formula. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected PTSD; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Further, neither the Veteran, nor his representative, have raised any other issues, nor have any other issues been reasonably raised by the record, in connection with his initial rating claim. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Thus, the Board finds that an initial rating in excess 50 percent for PTSD is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against such claim, the benefit of the doubt doctrine is not applicable in such regard and the Veteran’s initial rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to TDIU. The Veteran contends that he is unable to secure and following a substantially gainful occupation due to his service-connected PTSD. However, he does not meet the schedular threshold criteria for consideration of a TDIU at any point pertinent to the appeal period. In this regard, for the entire appeal period stemming from March 26, 2009, the date of service connection for his PTSD, the Veteran is service-connected for PTSD, evaluated as 50 percent disabling; diabetes mellitus, type II, evaluated as 10 percent disabling, effective January 21, 2016; and residuals of wart removal, evaluated as 0 percent disabling. Thus, he was in receipt of a combined 50 percent rating prior to January 21, 2016, and a combined 60 percent rating thereafter. 38 C.F.R. § 4.16(a). Nonetheless, VA regulations provide that, in all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), the claim should be submitted to the Director of Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). In this regard, in the Veteran’s May 2017 Application for Increased Compensation Based on Unemployability (VA Form 21-8940), he reported that he completed four years of high school and four years of trade school to become an electrician. The Veteran was employed as an electrician planner with Delmarva Power from March 1969 to November 2006, and with Valero Refining Group November 2006 to May 2009, and last worked on May 1, 2009. Furthermore, as discussed in the preceding section, the record reflects that the Veteran reported that he periodically had issues with supervisors, authority figures, and coworkers because of his PTSD, which ultimately led to his retirement as he became frustrated with the workplace culture and felt like he could not control himself from physical violence. Such report is consistent with the February 2009 disciplinary action that reflects that the Veteran behaved in an unacceptable manner on two occasions in January 2009, to include engaging in fist pounding, yelling, and provoking other employees and members of supervision, and speaking in a loud and forceful voice. Furthermore, such episode led to the Veteran’s hospitalization later that month for stress at work following a change of management due to symptoms of irritability, an inability to control his anger, and thoughts of physical harm to others. Thus, in light of the foregoing, the Board finds that, as the evidence suggests that the Veteran may be unable to secure or follow a substantially gainful occupation due to his PTSD, a remand is necessary to refer his claim for a TDIU to the Director of Compensation for extra-schedular consideration. The matter is REMANDED for the following action: Refer the case to the Director of Compensation Service for consideration of a TDIU on an extra-schedular basis pursuant to 38 C.F.R. § 4.16(b). A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Waite 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.