Citation Nr: 21009826 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 11-15 249A DATE: February 23, 2021 ORDER Entitlement to an increased initial disability rating of 70 percent, and no higher, for posttraumatic stress disorder (PTSD) from April 7, 2008 to February 10, 2016, is granted. Entitlement to an increased disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) from February 10, 2016 and thereafter is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD effective September 15, 2011 is granted. FINDINGS OF FACT Throughout the pendency of this appeal, the Veteran’s PTSD has manifested with occupational and social impairment, with deficiencies in most areas, but not total occupational and social impairment. Since September 15, 2011, the Veteran’s PTSD has rendered him unable to obtain or maintain substantially gainful employment consistent with his educational and vocational background. CONCLUSIONS OF LAW The criteria for an initial increased rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code 9411. Effective September 15, 2011, the criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1968 to September 1971, with service in the Republic of Vietnam. This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Montgomery, Alabama. In January 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. At that hearing, the issue of entitlement to TDIU based, in part, due to PTSD was raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that the issue of TDIU is part and parcel to a higher evaluation claim when the Veteran or the record reasonably raises the question of unemployability due to the disability for which the higher evaluation is sought). In August 2020, the Board remanded the appeal to the RO for further development. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a disability rating in excess of 30 percent for PTSD prior February 10, 2016, and in excess of 70 percent thereafter. The Veteran contends that his PTSD symptoms are of such frequency, severity, and intensity as to warrant a higher disability rating. Specifically, he contends that his PTSD symptoms result in social and occupational impairment that would warrant a 70 percent disability rating under Diagnostic Code 9411. For the reasons outlined below, and affording the Veteran the benefit of the doubt, the Board agrees. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 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 inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). All ratings in the General Rating Formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms; a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Id. at 117. VA had previously adopted the American Psychiatric Association: Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), for rating purposes. VA implemented DSM-5, effective August 4, 2014, and the VA Secretary determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). As the Veteran’s increased rating claim was originally certified to the Board before August 4, 2014, DSM-IV applies in this case. DSM-IV utilized Global Assessment of Functioning (GAF) scores which was based on a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness and served a tool in assessing the effect of mental disorders on occupational and social functioning. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994)). GAF scores ranging from 41 to 50 reflected serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). A score of 51-60 indicated moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peer or coworkers). GAF scores between 61 and 70 reflected some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign a rating 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). When determining the appropriate disability rating to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms; a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Entitlement to a disability rating in excess of 30 percent for PTSD prior February 10, 2016. The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher. In a December 2008 VA PTSD DBQ, the examiner found clinically significant distress or impairment, but opined that the Veteran did not experience occupational and social impairment as a result of his PTSD. The examiner noted symptoms of efforts to avoid thoughts, feelings, or conversations associated with the trauma; efforts to avoid activities, places, or people that arouse recollections of the trauma; inability to recall an important aspect of the trauma; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; restricted range of affect; sense of a foreshortened future; difficulty falling or staying asleep; irritability or outbursts of anger; difficulty concentrating; hypervigilance; exaggerated startle response; depressed mood; anxiety; 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, including work or a work like setting. In a March 2009 treatment note, the Veteran reported that flashbacks and insomnia. In an April 2009 treatment note, the Veteran reported that “I have suicidal ideations 2-3 times per week...don’t know what brings them on.” In an April 2009 treatment note, the Veteran reported that he suffered from depression for several years. He denied suicidal or homicidal ideations and auditory or visual hallucinations. In an April 2009 treatment note, the Veteran reported that he had suicidal ideations which were controlled by medications. The treating psychiatrist noted that Veteran presents with affect and mood that was blunted and depressed. Veteran admits to past history of suicidal thoughts but seems to believe that the medication that he currently takes has greatly diminished these thoughts. The Veteran’s private psychotherapist, Dr. C., summarized his treatment of the Veteran for the period from September 2011 to May 2012. In a May 2012 Behavioral Health Evaluation, Dr. C. noted that: He displays subtle symptoms of PTSD such as agitation, hypervigilance, scanning, avoidance, flight/fight, numbing, flashback, reliving experiences, loss of pleasure in things he once enjoyed, hallucinations, illogical thinking, intrusive thoughts, irritability, anger and startled responses. At times, (he) shows symptoms of suicidal ideation, poor self-esteem, poor personal hygiene, thoughts of superiority, thoughts of invincibility, etc.…His prognosis is poor. Psychopharmacologic intervention may be necessary…His condition is severe to very severe. In an April 2013 treatment note, the treating psychiatrist noted that the Veteran reported suicidal ideation, depression, sleep disturbance, poor appetite, concentration difficulties, social isolation, and hopelessness. In an April 2013 treatment note, the treating psychiatrist noted that the Veteran reported “I have no interest, I’m depressed, I feel hopeless, and I have no desire to do anything. My apartment is my fortress, and I stay held up there and don’t go anywhere.” He also reported anxiety, nightmares, and irritability. In a July 2014 treatment note, the treating psychiatrist noted that the Veteran’s mood is “tired,” affect is appropriate; speech at normal rate and rhythm non pressured; thought process is linear goal directed and coherent; no delusions/obsessions or auditory and visual hallucinations; no suicidal or homicidal ideations, intent or plans; no abnormal psychomotor agitation or retardation; no gross abnormal movements noted; intellectual function average based on fund of knowledge and educational level; memory grossly intact, attention and concentration fair; insight/judgment was fair/fair. In an October 2014 treatment note, the treating psychiatrist noted that the Veteran’s symptoms were stable “with medication.” In a July 2015 treatment note, the treating psychiatrist noted that the Veteran’s affect is appropriate; speech at normal rate and rhythm non pressured; thought process is linear goal directed and coherent; no delusions/obsessions or auditory and visual hallucinations; no suicidal or homicidal ideations, intent or plans; no abnormal psychomotor agitation or retardation; no gross abnormal movements noted; intellectual function average based on fund of knowledge and educational level; memory grossly intact, attention and concentration fair; insight/judgment was fair/fair. In a November 2015 treatment note, the treating psychiatrist noted that the Veteran’s affect is appropriate; speech at normal rate and rhythm non pressured; thought process is linear goal directed and coherent; no delusions/obsessions or auditory and visual hallucinations; no suicidal or homicidal ideations, intent or plans; no abnormal psychomotor agitation or retardation; no gross abnormal movements noted; intellectual function average based on fund of knowledge and educational level; memory grossly intact, attention and concentration fair; insight/judgment was fair/fair. In a subsequent February 2016, VA PTSD DBQ, the examiner noted that the Veteran’s diagnosed PTSD was more severe than during the previous evaluation, and the examiner also diagnosed unspecified depressive disorder. The Veteran was noted to experience occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. Since his most recent examination, the Veteran reported symptoms of nightmares, flashbacks, hypervigilance, suicidal ideation, insomnia, anxiety, hyperarousal, avoidance, agitation, exaggerated startle response, and irritability. The following symptoms were noted: anxiety, chronic sleep impairment, flattened affect, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, and an inability to establish and maintain effective relationships. In a February 2018 addendum, he Veteran’s private psychotherapist, Dr. C., summarized his treatment of the Veteran for the period from January 2018 to February 2018. Of note, Dr. C. also opined that the Veteran’s PSTD has resulted in severe symptoms and significant occupational and social impairment since 2008. Dr. C. described symptoms consistent with his February 2012 behavioral health evaluation. VA and private treatment records, the February 2016 VA examination, and the Veteran’s lay statements show that the Veteran’s PTSD was manifested by symptoms associated with a 70 percent rating to include suicidal ideation, social isolation, difficulty in adapting to stressful circumstances, near-continuous depression affecting the ability to function independently, appropriately and effectively; occasional neglect of personal appearance and hygiene; and an inability to establish and maintain effective relationships, and symptoms associated with a 100 percent rating to include delusions or hallucinations and danger of hurting self or others. He also had symptoms that are not listed with a specific rating, such as poor appetite, fatigability, and easy startling. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The Veteran reported that these symptoms were not present daily. Further, the unlisted symptoms are similar to depressed mood, anxiety, and hypervigilance, which are contemplated by the assigned 70 percent rating. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied persistent thoughts, intent, or a plan involving self-harm in existing treatment records. Additionally, these symptoms were not persistent but occurred infrequently. The Veteran reportedly had some instances of hallucinations, but these are not reported or shown to have been persistent. His memory impairment has not risen to the level of disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. The Veteran is capable of perform activities of daily living on a daily basis, and any impairment of thought process or communication does not rise to the level of gross impairment. The lowest GAF score of 48 reflected serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job), but still recognized some residuals occupational and social capability. As such, the Veteran has not met, or more nearly approximated, the criteria for a 100 percent rating for any time during the appeal period. As the criteria for an evaluation in excess of 50 percent disabling for PTSD has been met, the Board finds that a disability rating of 70 percent is warranted. Therefore, an initial rating of 70 percent, but no higher, for PTSD is granted. 2. Entitlement to TDIU prior to May 12, 2015. As a result of this decision, the Veteran holds a 70 percent rating for PTSD which meets the criteria for schedular consideration of TDIU pursuant to 4.16(a). For VA purposes, total disability exists when there is any impairment of the mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In determining unemployability, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims) (CAVC) discussed the meaning of “substantially gainful employment.” In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total ‘basket case’ before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. The CAVC has defined being unable to secure and follow a substantially gainful occupation as having an 1) an economic component of earning more than marginal income (outside of a protected environment as determined by the U.S. Department of Commerce as the poverty threshold for one person and 2) a non-economic component of the individuals ability to secure or follow that type of employment; factors to consider include: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). Factors that may be relevant include, but are not limited to, the Veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity.) Here, the Veteran’s application for disability benefits with the Social Security Administration (SSA) reflects that he last had substantially gainful employment on September 15, 2011. He as been adjudicated as disabled by SSA based on a primary diagnosis of anxiety related disorder and a secondary diagnosis of disorders of the back. The Veteran described the reasons for unemployability was an inability to handle stress which caused anger with outbursts and instances of road rage. He reported that his psychologist encouraged him to quit working. He had two years of college education, and primarily had worked as a truck driver. The SSA award appears to be partly based on a 2012 summary of treatment by Dr. Covin (discussed above). It was indicated that sleep impairment caused by PTSD was affecting the Veteran’s ability to stay awake while driving. Dr. Covin described the Veteran’s PTSD as severe to very severe as represented by a GAF score of 48. It was indicated that the Veteran had a poor prognosis, and the probability of meaningful long term change was low. (continued on the next page) In awarding TDIU benefits, the RO cited records from Dr. Covin in 2018 noting that the Veteran’s PTSD prognosis was poor with a probability of meaningful long term change being low. Dr. Covin more specifically noted in this report that the Veteran had been severely impaired due to PTSD back to at least September 2011, had been unable to obtain or maintain gainful employment since 2013 and was unemployable. In the opinion of the Board, the description of the Veteran’s PTSD by Dr. Covin in 2018 is essentially the same as described in the 2012 summary report. As such, the Board finds that effective September 15, 2011, the Veteran’s PTSD is shown to have rendered him unable to obtain or maintain substantially gainful employment consistent with his educational and vocational background. As such, TDIU is awarded effective September 15, 2011. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.