Citation Nr: 21022509 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 14-33 136 DATE: April 16, 2021 ORDER An initial 70 percent rating, prior to March 14, 2018 (excluding the period from June 9, 2014 to July 31, 2014 where a temporary total 100 percent evaluation is already awarded), for posttraumatic stress disorder (PTSD) is granted. A 70 percent rating for PTSD, since March 14, 2018, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s service-connected PTSD resulted in occupational and social impairment with deficiencies in most areas. 2. The Veteran’s service-connected PTSD is of such severity as to preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent rating, but no higher, for PTSD, during the entirety of the period on appeal (excluding the period from June 9, 2014 to July 31, 2014 where a temporary total 100 percent evaluation is already awarded) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to April 1973. He is the recipient of multiple awards and decorations, including a Bronze Star and Purple Heart. The Veteran testified before the undersigned Veterans Law Judge in February 2018. A copy of the transcript is of record. This case was previously before the Board in August 2018, when the claims were remanded for further development. A June 2020 supplemental statement of the case was most recently issued, and the case is once again before the Board. Increased Ratings 1. Entitlement to an initial rating in excess of 30 percent, prior to March 14, 2018 (excluding the period from June 9, 2014 to July 31, 2014 where a temporary total 100 percent evaluation is already awarded), for PTSD. 2. Entitlement to an initial rating in excess of 50 percent, since March 14, 2018, for PTSD. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). 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 Veteran’s PTSD has been rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, as 30 percent disabling prior to March 14, 2018 and as 50 percent disabling since that date for the remainder of the appeal period. The Veteran has been awarded a temporary total rating under 38 C.F.R. § 4.29 for the period between June 9, 2014 and July 31, 2014, which will not be disturbed. Based on a review of the record during the appeal period, the Board finds that a 70 percent rating is warranted for his PTSD for the entirety of the appeal period. Under Diagnostic Code 9411, a 30 percent rating is warranted if there is 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is warranted when there is occupational and social impairment, but with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, 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 task); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. The maximum rating of 100 percent requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Thus, the analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The classification outlined in the portion of VA’s Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.130. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996). Effective August 4, 2014, the DSM-IV was superseded by a new fifth edition that significantly changed diagnostic metrics for mental illnesses. In pertinent part, the DSM-5 eliminated the GAF scores used in the DSM-IV. It was recommended that the GAF be dropped from DSM-5 for several reasons, including its lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. A review of the evidence reflects that a rating of 70 percent is warranted for the entire period on appeal. The Veteran initially attended an October 2012 VA examination. It was noted that he was currently employed full-time and that he was currently receiving mental health treatment at the Vet Center in Las Cruces. The examiner noted that the Veteran’s PTSD symptoms caused clinically significant distress or impairment in social, occupational or other important areas of functioning. A mental status examination revealed that the Veteran was dressed casually and his hygiene was good. The examiner stated that his mood and affect ranged from blunted to depressed to distraught when describing his combat experience in Vietnam. The Veteran reported problems sleeping too little, anxious mood, low energy, and troubling memories and nightmares of his combat experience in Vietnam. He denied panic attacks, suicidal or homicidal thoughts, hallucinations, or delusions. As previously noted, the Veteran received in-patient treatment for his PTSD between June 9, 2014 and July 3, 2014. Significant PTSD treatment records, both from a group setting and individual treatment, from the Vet Center have been submitted and reviewed. Together they show that the Veteran’s PTSD was characterized as severe and chronic throughout the period on appeal. At a June 2014 VA treatment visit, the Veteran reported that he had not been honest with providers in the past due to concerns that what he reported would negatively impact his employment and thoughts that providers were trying to prove he was “crazy.” At the Veteran’s February 2018 Board hearing it was reported that the Veteran had retired early in December 2013 because he was having extreme problems on the job. He reported problems with concentration and his memory, which included prescribing the correct dosage of prescriptions to administer, treatment of patients, allergic reaction procedures, and heart attack procedures. It was noted that the Veteran was fortunate to have had assistance from others at work and no patient was ever injured. He reported a difficult time with reports, training, and at the end of the day he retired because he did not want anyone to get hurt. The Veteran reported that he had started to have confrontations with administration at work. The Veteran testified that he became more irritable and the only time he felt safe was to be isolated by himself locked in his garage, away from people. In a February 2018 statement from his wife, she noted that she had been married to the Veteran for 47 years. She reported that the Veteran had retired and the last year of his employment had become very difficult for him. She reported that he had a tremendous amount of responsibility training young fireman and was also an EMT. She reported that the Veteran had difficulty remembering doses of medications when he was out on EMS calls and he would lose his thought while training students in the classroom. She reported that he suffered from nightmares, sleepless nights, insomnia, anxiety, bowel problems, night sweats, and health issues. She stated that he was withdrawn, isolated from others, had outbursts of anger, inconsolable crying, had difficulty coping with life on a day to day basis, remembering names of people he knew for years, and problems talking about his feelings. The Veteran underwent an additional VA examination in March 2018. The examiner noted that the Veteran’s symptoms included depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flatted affect, disturbances of 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 impaired impulse control such as unprovoked irritability with periods of violence. The examiner noted that the Veteran was alert and oriented to person, place, and time. His thought process was described as linear, logical, and goal oriented. His mood was noted to be somewhat depressed, with constricted and tearful affect. The Veteran denied suicidal/homicidal ideations or hallucinations. The Veteran has additionally submitted a March 2019 letter from a licensed social worker who has treated him at the Vet Center since February 2009. She reported that she had worked with the Veteran in individual, family and group therapy for a total of 323 visits. She stated that he has a diagnosis of PTSD that is chronic and severe with serious impairment in social and occupational functioning, judgment, thinking and mood. His treating practitioner noted that the Veteran lived with his spouse of 48 plus years who supports his treatment work. It was noted that he was estranged from his daughter and struggles with other family relationships. She noted that he is hypervigilant and has panic attacks. She noted that in the last year his startle reflexes have increased and are disruptive to his daily functioning. She noted that the Veteran has internalized his anger and the destruction is turned inward. He does not socialize, isolates, and is withdrawn from others, including family members. She noted that in her professional opinion the Veteran’s current prognosis is poor and his progress has been up and down every year but remains “poor” as when he was initially rated for his combat related PTSD. Following a review of the evidence, to include the statements of the Veteran, his wife, and his long term treating licensed social worker, the Board finds that the Veteran’s service-connected psychiatric disability has been most consistent with a 70 percent disability rating, not the 30 and 50 percent disabilities ratings currently assigned. Although some treatment records appear to reflect milder psychiatric symptomatology, the evidence as a whole is most consistent with a 70 percent disability rating. Accordingly, and based on these findings, the Board finds that a 70 percent rating is warranted. Nevertheless, the Board finds that a rating in excess of 70 percent is not warranted for any period during the pendency of the claim, as the Veteran’s symptomatology did not manifest as total occupational and social impairment, due to such symptoms as (for example only): 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 Veteran’s reported social functioning was fairly consistent throughout the period on appeal, with social isolation and some interaction, including a nearly 50-year marriage. Thus, while limited, he was still able to continue relationships with some people, including some family. Although he experienced unemployment during the appeal period, a rating of 100 percent is only warranted for both total social and total occupational impairment. The Board concludes the criteria for a 100 percent rating for the Veteran’s service-connected psychiatric disability were not met at any point during the period on appeal. 38 C.F.R. § 4.130, DC 9411. His own reports at various evaluations regarding how his service-connected psychiatric disability impacted him, overall, would provide additional evidence against this claim, clearly indicating the level of symptomatology cited within the 100 percent rating were not met at any point during the period on appeal. In summary, while the Veteran was significantly socially limited by his service-connected psychiatric disability, the evidence fails to show that this impairment was “total” so as to warrant a 100 percent rating. Based on the foregoing discussion, the Board finds that Veteran’s PTSD has more nearly approximated the rating criteria for a 70 percent rating. As such, a rating of 70 percent is granted, but a rating in excess of 70 percent is not warranted. 3. Entitlement to TDIU. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). TDIU is granted where a Veteran’s service-connected disabilities are rated less than total, but prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. The Veteran is now in receipt of a schedular rating of 70 percent for his PTSD for the entire period on appeal. As the Veteran is rated at 70 percent for his PTSD, he meets the schedular criteria of 38 C.F.R. § 4.16(a). Thus, the issue is whether his service-connected PTSD has precluded him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a “living wage”). See Moore v. Derwinski, 1 Vet. App. 356 (1991). Evidence of record reflects that the Veteran last engaged in substantially gainful employment in December 2013. See VA Form 21-8940. The Veteran reported that he had been a fire captain and involved in EMT training. He reported that he had resigned from his job because of problems with his concentration, memory, and anxiety. The Veteran stated that he resigned before he mixed up prescriptions, made the wrong treatment, or injured someone he was providing care for. He noted that his symptoms made it difficult for him to concentrate, unable to work and be around others, and irritable. A February 2018 signed statement from his last employer reflects that the Veteran last worked in December 2013 and had resigned for medical reasons, specifically PTSD symptoms. In a March 2019 letter from his long term treating licensed social worker, she noted that the Veteran’s PTSD is chronic and severe with serious impairment in social and occupational functioning. She stated that in her professional opinion his current prognosis is poor and essentially assessed the effects of his PTSD as “permanent and total.” In light of the Veteran’s occupational background and functional limitations, and giving him the benefit of the doubt, the Board finds that his service-connected PTSD is sufficient to render him unable to obtain and maintain any form of substantially gainful employment in accordance with his occupational background and education level. Accordingly, based on all of the foregoing, the Board finds that entitlement to a TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, 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.