Citation Nr: 21067845 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 18-36 793 DATE: November 5, 2021 ORDER Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) with unspecified depressive disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's PTSD with unspecified depressive disorder is not shown to be productive of a disability picture that more nearly approximated total occupational and social impairment. 2. The most probative evidence indicates that the Veteran's service-connected disabilities did not preclude him from substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 70 percent for PTSD with unspecified depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1964 to June 1968 and served in the Republic of Vietnam from August 1967 to June 1968. He was awarded the Vietnam Service Medal with 2 stars, among other commendations. The appeal was remanded in June 2019 and May 2021 for additional development, which has been completed. 1. Entitlement to a rating in excess of 70 percent for PTSD with unspecified depressive disorder Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. The Board will 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 (2009). The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. The Veteran contends that he is entitled to a rating higher than 70 percent for his service-connected PTSD with unspecified depressive disorder. The Veteran's service-connected psychiatric disorder is rated under Diagnostic Codes Diagnostic Code 9411, which utilize General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under that Formula, a 50 percent rating is assigned 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; 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. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders, Diagnostic Code 9411. A 70 percent rating 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 circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. Id. As the United States Court of Appeals for the Federal Circuit recently explained, 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. VazquezClaudio v. Shinseki, 713 F.3d 112, 11617 (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). Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. VA implemented DSM-5, effective August 4, 2014, and the VA Secretary determined that DSM-5 applies to claims certified to the Board after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). As the Veteran's appeal was certified to the Board after August 4, 2014, the DSM-5 is applicable to this case. Effective August 4, 2014, VA also 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 DSM-5. According to DSM-5, clinicians no longer typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons including its conceptual lack of clarity (i.e., including symptoms, the suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. The Board has undergone a highly detailed review of the Veteran's condition to fully address this case: A private initial psychiatric assessment report in February 2017, noted that the Veteran reported symptoms of depression, intrusive thoughts, nightmares, avoidance of stimuli, impaired sleep, anxiety and a decline in memory and concentration. The Veteran reported being married twice, with his first marriage lasting 28 years and his second marriage going on 20 years. He had two daughters and one son from his first marriage, as well as four stepsons. He reported having retired in 2009 as a rehabilitation manager for a pharmaceutical company where he had been employed for four years. He had also worked intermittently as a radio/TV broadcaster from 1974 for approximately 30 years. The Veteran had also been employed for a cable company for 15 years as a director of customer service. The Veteran had attained three years of college. An emergency room treatment note dated September 2017 contained complaints of depression symptoms that worsened when he stopped taking Zoloft and Klonopin after his prescription ran out. The Veteran reported anhedonia, hopelessness, irritability, low energy, impaired sleep and concentration, sad mood, feeling indifferent about being alive. The Veteran reported that he was seeing a private psychiatrist but wanted to schedule VA mental health care. A September 2017 mental health crisis intervention note indicated that the Veteran called the VMCL hotline seeking help for worsening depressive symptoms and hopelessness. He reported that he was having suicidal thoughts over the last year which increased after having a heart attack in January 2017. The Veteran had worked as a minister up until his heart attack, although he remained involved with his church. Other reported stressors included the death of his son a month earlier. The Veteran reported that it was his birthday and he awakened feeling hopeless and stated that he was looking forward to dying, stating that he felt that he should be further along in life. The Veteran reported that he was off his medications for several months and last saw his psychiatrist months earlier. Although he felt he had a decent support system between his wife, family and church, he agreed that he would benefit from being on a consistent medication regimen and speaking regularly with a therapist for additional support. An October 2017 VA treatment note indicated the Veteran reported decreased energy, fatigue, depression, feeling down, low appetite, and little interest in activities. He stated that he recently started seeing VA mental health providers. The Veteran reported that after he stopped working, he had an exacerbation of symptoms, becoming increasingly worse over the previous year. He related having no good days since his retirement. He endorsed recurring thoughts of suicide associated with the planning of his son's funeral. The Veteran identified his wife as his only reason to live. He related symptoms of distress related to his Vietnam deployment. He described images of dead bodies and being sent into areas where the odds were against him surviving. The Veteran also described efforts to avoid thoughts relating to being in Vietnam. He stated that he previously stayed away from VA purposefully to avoid being around others and being triggered by combat stories. He reported always being on guard and concerned for his safety. The Veteran reported nightmares related to Vietnam at least once a week, flashbacks and intrusive thoughts. He expressed feelings of worthlessness and distress due to finances and medical bills. In November 2017, the Veteran reported one recent panic attack. He was described as being well groomed with good eye contact and casually dressed. His behavior was calm, cooperative and engaged. His speech was normal in rate, tone and amount. Thought processes were linear and logical. The Veteran denied suicidal or homicidal ideation, plan or intent. There was no evidence of psychosis. Insight was good. Judgment was appropriate and he was alert and on task. His psychiatric disorder was characterized as moderate. A January 2018 mental health treatment note indicated that the Veteran self-increased his medication to combat depressive symptoms of low mood, anhedonia, low energy poor concentration, and hopeless feelings. On VA examination in February 2018, the Veteran reported recurrent intrusive memories of the events, distressing dreams, persistent avoidance of stimuli, significant negative alterations in cognition and mood, heightened alterations in reactivity that interfered with social functioning, depressed mood most of the time, and diminished interest in most activities. The examiner noted difficulty adapting to stressful circumstances, including work or a work like settings and suicidal ideation. The Veteran reported having three children from his first marriage which lasted for 27 years. The marriage ended in divorce because they grew apart. The Veteran remarried. He described his second marriage as supportive. The Veteran maintained an active role in his children's lives and attended school functions and music recitals. He was close to his children from his first marriage, as well as well as his wife's children from her previous relationship. The Veteran also maintained a close relationship with his grandchildren. Following the military, the Veteran attended three years of college and worked in various corporate businesses until he retired in 2011. Reportedly, the Veteran spent his career managing people and had large projects which were team oriented. He stated that he was very successful at what he did. He was fired from one job because he disagreed with the company policies. Otherwise, he denied any occupational difficulty or negative administrative action. The examiner noted Veteran's PTSD symptoms became problematic once the Veteran retired from his fulltime employment. The examiner stated that the Veteran's depressive symptoms also manifested during this period and were exacerbated during and after the decline of his heart health. A January 2020 mental health outpatient note recorded the Veteran's complaints of increased stress, increased depressive symptoms with low mood, anhedonia, low energy and hopeless feelings. He denied suicidal or homicidal ideation, plan or intent. He was described as being well groomed with good eye contact and was casually dressed. His behavior was calm, cooperative and engaged. His speech was normal in rate, tone and amount. Thought processes were linear and logical. There was no evidence of psychosis. Insight was good. Judgment was and insight were good and condition was grossly intact. A March 2020 mental treatment note indicated that the Veteran's medication was increased in light of increased depression. The Veteran was not hopeless and he denied suicidal ideation or nightmares. On VA examination in July 2021, the Veteran reported being engaged in mental health treatment at the VA, to include outpatient individual and group therapy. He managed his symptoms with prescribed psychotropic medications. The Veteran denied a history of inpatient treatment. He endorsed a continuation of PTSD symptoms including depression, anxiety, intrusive memories, avoidance of triggers, marked alterations in arousal and reactivity, sleep problems, intermittent negative alterations in mood, rumination, hypervigilance, anxiety, depression, suspiciousness, and decreased motivation and interest. He denied panic attacks. The Veteran reported intermittent feelings of hopeless and helpless, which he related to ongoing life circumstances, such as heart problems and untreated obstructive sleep apnea. He denied suicidal ideations, manic episodes, hallucinations or delusions. The Veteran resided with his wife of 23 years. He has been married once before and had three children from his first marriage, aged 55, 53 and 51. He was in frequent contact with them and described their relationships as good. The Veteran reported having social support from his wife. He was mostly estranged from his siblings due to their childhood experiences. He reported having a number of friends. The Veteran remained retired and spent his time caring for his wife, who's health was declining. He also volunteered as a Jehovah's Witness in the community. The Veteran was able to drive unrestricted and was independent in activities of daily living. The Veteran was described as neatly dressed. He exhibited good eye contact and fair hygiene. He was oriented times four. His attitude and behavior were cooperative and engaged. The Veteran was alert, and his attention and concentration were unimpaired. Affect was mood congruent. His range/mobility of emotion was full. The Veteran's psychomotor activity was unremarkable. His speech was normal. His judgment was intact and his insight was fair. The Veteran's thought content was coherent and linear, and thought processes were logical and goal oriented. His memory was intact. There were no signs of perceptual disturbances observed. The examiner determined that the Veteran's psychiatric symptoms were productive of 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. The examiner noted that the Veteran's symptoms could intermittently impair his attention, concentration and task execution. The Veteran's treatment records contain findings consistent with the VA examination reports. He generally denied any suicidal ideation and was found to be cognitively intact. Based on the evidence of record, the Board finds that throughout the period on appeal, the criteria for a 100 rating were not met, as the evidence does not reflect total social and occupational impairment. There is no evidence of total social impairment. Instead, the evidence shows that the Veteran resided with his spouse of over 20 years and he described the marriage in positive terms and his relationship as supportive. He had a close relationship with his children and grandchildren and reported having friends and a good support system. The Veteran remained active with his family, church and community. Following the military, the Veteran attended three years of college and worked in various corporate businesses until he retired in January 2017 following a heart attack. He described having a successful career and generally denied any occupational difficulty or negative administrative action. He also had a radio show for approximately 30 years. More importantly, none of the health care providers or the examiners who examined the Veteran determined that his psychiatric symptoms were productive of total social and occupational impairment. At most, the Veteran's psychiatric disorder was characterized as productive of occupational and social impairment reduced reliability and productivity. The Veteran's own statements of his condition did not always support the 70% evaluation, let alone the 100% evaluation. In sum, although the Veteran endorsed problems with impaired sleep, anxiety, depression, hypervigilance, memory and concentration problems, avoidance of stimuli, irritability, nightmares, and there was evidence of some suicidal ideation, particularly following his heart attack and the death of his son, the preponderance of the probative evidence is against a finding that the Veteran's psychiatric symptomatology more nearly approximated total occupational and social impairment, such that a schedular 100 percent rating is warranted. The Board has considered the contentions from the Veteran regarding the severity of his psychiatric disorder; however, the objective clinical findings outweigh the subjective assertions of the Veteran as to whether he had total social and occupational impairment due to his psychiatric disorder. In sum, the Veteran's symptoms reflect no more than moderate difficulty in social, occupational, or school functioning. It is at best debatable that the Veteran's symptoms met the criteria for the currently assigned 70 percent rating, much less the criteria for the next higher rating of 100 percent. It is very important for the Veteran to understand that the above finding does not suggest, in any way, that the Veteran was not having problems with his PTSD with unspecified depressive disorder. A 70% rating for PTSD with unspecified depressive disorder will cause the Veteran many, many problems, as he has cited. In absence of evidence of 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place, or similar symptomatology of such frequency, duration, or severity, the Board finds that the criteria for a 100 percent rating have not been demonstrated. There is no evidence of memory loss for names of close relatives, or his own name. The evidence does not show persistent delusions or hallucinations. The evidence does not show gross inappropriate behavior or gross impairment in communication. His thought processes have not demonstrated gross impairment and he was found to be cognitively intact. Therefore, the Board finds that the evidence does not more nearly approximate the criteria for a rating of 100 percent and a rating greater than 70 percent is denied. Accordingly, a rating in excess of 70 percent rating is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to a TDIU The Veteran contends that his service-connected PTSD with unspecified depressive disorder and coronary artery disease (CAD) status post myocardial infarction myocardial infarction (MI) with stent implantation and cardiomyopathy, prevent him from obtaining gainful employment. In order to establish a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Under the applicable criteria, a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Here, service connection is currently in effect for: PTSD with unspecified depressive disorder, evaluated as 70% disabling; and CAD status post MI with stent implantation and cardiomyopathy, evaluated as 30% disabling. Thus, the Veteran meets the minimum threshold for consideration of a schedular TDIU. Id. In an April 2018 VA Form 21-8940, the Veteran asserted that his heart disability precluded employment. Reportedly, he became too disabled to work in January 2017, following a heart attack. The evidence shows that after the military, the Veteran attended three years of college and worked in various corporate businesses until he retired. The record reflects different retirement dates, including 2009, 2011 and 2017. The Veteran's occupational history is not entirely clear, but it included work as a rehabilitation manager for a pharmaceutical company for four years, as a director of customer service for a cable company for 15 years, as a minister and as a radio/TV broadcaster for approximately 30 years. Reportedly, he spent his career managing people and had large projects which were team oriented. Pertaining to the service connected psychiatric disability, the evidence shows that his symptoms worsened following his retirement in 2017. Symptoms included depression, anxiety, intrusive memories, avoidance of triggers, marked alterations in arousal and reactivity, sleep problems, intermittent negative alterations in mood, rumination, hypervigilance, anxiety, depression, suspiciousness, decreased motivation and interest, feelings of hopeless and helplessness, and some suicidal ideation. VA treatment notes generally described the Veteran's symptoms as moderate in severity and a VA examiner in July 2021 determined that the Veteran's psychiatric symptoms were productive of 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. The Veteran's symptoms could intermittently impair his attention, concentration and task execution. Concerning his heart disability, on a February 2017 disability benefits questionnaire for ischemic heart disease a clinician determined that the Veteran had retired due to his heart disability because he was no longer able to perform heavy lifting as required by his job. On VA heart examination in February 2018, the Veteran reported that in January 2017 he experienced chest pain, shortness of breath and neck pain. He sought and was diagnosed with acute MI. The Veteran had two stents placed. The examiner diagnosed coronary artery disease with myocardial infarction, which was productive of occupational impairment as it limited his ability to lift heavy objects. The Veteran underwent a heart examination in July 2018. The examiner noted that the Veteran was diagnosed with atherosclerosis and experienced a MI in January 2017, requiring angioplasty with CAD stent placement. The examiner noted that interview-based METs testing indicated >7-10 Mets, and indicated dyspnea. The Veteran did not undergo an exercise stress test. The examiner noted that the METs level documented was based on subjective information given by the Veteran and was not objective. He stated that stress testing would afford more accurate objective evidence pertaining to cardiac function and assess impact on the Veteran's ability to work. On VA examination in July 2021, a VA examiner diagnosed CAD status post MI with stent implantation and opined that due to the Veteran's heart disability he could not do heavy work or climb a flight of stairs slowly, otherwise he would experience shortness of breath. In sum, the Board finds that the Veteran's service-connected disabilities were productive of some occupational limitations, however, the preponderance of the evidence is against finding that his service-connected disabilities either singularly or jointly, precluded the Veteran from gainful employment, and collectively provided evidence against this finding. While his heart disability limited the Veteran's ability to do heavy lifting and climb stairs, and there is some evidence that he worked a job that required heavy lifting in 2017, the evidence also shows that he had a long and successful history of working in a managerial capacity. The objective medical evidence, to include VA examination reports, did not support a finding that the Veteran was precluded from obtaining or maintaining substantially gainful employment. Following repeated examinations, the evidence in this case provides highly probative evidence against this claim. The examiners addressed the question of employability directly and their opinions are internally consistent. The Veteran's private and VA treatment records do not contradict the VA examination reports described above, only support it. The weight of the evidence of record does not contradict the findings of the Veteran's VA treating physicians and the VA examiners. In this regard, it is important for the Veteran to understand that there is now a highly significant amount of highly probative medical evidence that weighs against this claim that the Board simply cannot ignore. While the Veteran is competent to report symptoms he experiences, an opinion as to the limitations on gainful employment due to his service-connected disabilities is beyond his medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, any such lay statements regarding him being unable to work are not competent or sufficient. Simply stated, both the best factual evidence, including occupational history reported by the Veteran, and the best medical evidence, in the form of the examinations cited above, provides evidence against this claim. The Board observes that the disability ratings assigned throughout the appeal, recognize that the impairment due to his service-connected disabilities made it difficult to obtain and keep employment (that the Veteran had problems is not in dispute). However, the ultimate question in determining entitlement to a TDIU is whether the Veteran was capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose, 4 Vet. App. at 363. If the Veteran did not have problems with his service-connected disabilities, there would be no basis for the combined disability ratings of 80 percent (which, it is important for the Veteran to understand, will cause him many problems). The Veteran's unusually strong work history, showing an ability to do many things (which the Board must note for the record) suggests that he could work in a position that did not require heavy lifting or great stress (the Veteran's age or nonservice connected problems cannot be used for a basis for granting the TDIU claim). Simple retirement is not a basis to find TDIU. In this case, there is no indication from the record that the Veteran was unable to obtain and maintain substantially gainful employment solely as a result of his service-connected disabilities, either singularly or jointly. As the preponderance of the evidence is against the claim for entitlement to a TDIU, the benefit of the doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.