Citation Nr: 21028642 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-18 605A DATE: May 11, 2021 ORDER Entitlement to an initial rating in excess of 50 percent from November 16, 2012 to March 2, 2015 for post-traumatic stress disorder (PTSD) with major depressive disorder is denied. Entitlement to a rating of 70 percent, but no higher, from March 2, 2015 to December 13, 2017 for PTSD with major depressive disorder is granted, subject to the laws that govern the payment of monetary benefits. Entitlement to a rating of 100 percent from December 13, 2017 is granted, subject to the laws that govern the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Prior to March 2, 2015, the Veteran's PTSD was predominately manifested by a condition resulting in occupational and social impairment with reduced reliability and productivity due to such various symptoms. 2. From March 2, 2015 to December 13, 2017, the Veteran's PTSD was predominately manifested by a condition resulting in occupational and social impairment with deficiencies in most areas, due to various symptoms. 3. From December 13, 2017, the Veteran's PTSD was predominately manifested by a condition resulting in total occupational and social impairment due to various symptoms. 4. Prior to December 2017, the Veteran's service-connected disabilities have not been shown to render the Veteran unable to obtain or maintain a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an increased evaluation in excess of 50 percent prior to March 2, 2015 have not been met for the Veteran's service-connected PTSD. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411 (2019). 2. The criteria for an increased evaluation of 70 percent, but no higher, from March 2, 2015 to December 13, 2017 have been met for the Veteran's service-connected PTSD. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411 (2019). 3. The criteria for an increased evaluation of 100 percent from December 13, 2017 have been met for the Veteran's service-connected PTSD. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9411 (2019). 4. The criteria for a total disability rating based on individual unemployability due to service-connected disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.19 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from April 1969 to June 1972. In October 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. This case was previously before the Board in September 2018, at which time it was remanded for additional development. That development having been completed; this case is once again before the Board. It is noted that, while the case was on remand, the RO, in a May 2020 rating decision, increased the Veteran's PTSD to 100 percent effective September 10, 2018. It is noted that applicable law mandates that when an appellant seeks an increased rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See A.B. v. Brown, 6 Vet. App. 35 (1993). As there are higher evaluations available for the service-connected PTSD and the increased evaluation does not cover the entire period of appeal, the Veteran's claim is still in controversy and shall continue to be adjudicated by the Board. 1. PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. § Part 4 (2019). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § § 4.1 (2019). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation 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 service-connected PTSD is rated as 50 percent prior to December 16, 2015, 70 percent prior to September 10, 2018, and 100 percent thereafter. 38 C.F.R. § § 4.130, DC 9411. Because a 100 percent evaluation is the highest rating available for this condition, the appeal from September 10, 2018 is considered fully resolved. As such, the scope of the remaining appeal shall be limited to the time period prior to September 10, 2018. A 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where 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, 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 an inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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, an 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. Initially, the Board acknowledges that the Veteran's increased rating claim was pending before the RO before August 4, 2014, which was the effective date for when the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) [DSM-IV] was updated to the fifth edition, the DSM-V. It is anticipated that diagnoses of mental disorders will conform to these manuals. The DSM-IV contained Global Assessment of Functioning (GAF) scores, which are set forth on 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). A GAF score of 31 to 40 reflects some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as with work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, inability to keep a job). A GAF score of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in his social, occupational, or school functioning (e.g., few friends, conflicts with peers or with co-workers). Scores ranging between 61 and 70 reflect 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," and has some meaningful interpersonal relationships. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). Additionally, the level of occupational and social impairment due to a psychiatric disorder is the primary consideration in determining the severity of a psychiatric disorder for VA purposes and not all the symptoms listed in the rating criteria must be present in order for a rating to be warranted. See Mauerhan v. Principi, 16 Vet. App. 436, 443-44 (2002) (finding that the psychiatric symptoms listed in the rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings). 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, and that 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 v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). A review of the Veteran's outpatient treatment records shows that, prior to March 2, 2015, the Veteran did not appear to be involved in active treatment of his condition. Records in 2006, 2010, and 2014 showed that on routine medical examinations, he did not endorse any notable psychiatric symptoms. The Veteran was provided with a VA examination in November 2013. He was diagnosed with PTSD and cannibis dependence. The examination revealed what the examiner considered to be occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran's condition was due to such symptoms as anxiety, depression, suspiciousness, weekly panic attacks, chronic sleep impairment, mild memory loss, disturbances in motivation and/or mood, difficulty in adapting to stressful circumstances, and suicidal ideation. The Veteran was given a GAF score of 60. In particular, the Veteran was noted as working full time and being married with two step-children. The Veteran required medication for treatment, but was otherwise stable. Beginning in March 2015, the Veteran's enrolled in ongoing treatment at the Vet Center. The Veteran complained of increased symptoms of depression, anxiety, and substance abuse. Suicidal ideation was also noted. The Veteran appears to have regularly continued treatment at this facility throughout the duration of the appeal period. A June 2015 document indicated the Veteran's symptoms consisted of avoidance, depression, anxiety, anger, intrusive thoughts, poor social and occupational interaction ,and hyper arousal. The Veteran also reported extreme problems concentrating and remembering information. The Veteran was provided with an additional VA examination in December 2015. He was diagnosed with PTSD, major depressive disorder, and cannibis dependence. The examiner was unable to differentiate the psychiatric symptoms, as they were interrelated. The examination revealed what the examiner considered to be occupational and social impairment with deficiencies in most areas. The Veteran's condition was due to such symptoms as anxiety, depression, suspiciousness, near continuous panic attacks, chronic sleep impairment, mild memory loss, disturbances in motivation and/or mood, difficulty in establishing and maintaining effective relationships, difficulty in adapting to stressful circumstances, suicidal ideation, and intermittent inability to perform activities of daily living. In particular, the Veteran was still noted as working full time and being married for 22 years. The Veteran indicated that his condition had recently worsened, to include depression. He also expressed increased anxiety, causing him to avoid people, which was difficult in his profession as a realtor. The examiner recommended continued therapy and medication. The Veteran also appears to have seen a psychiatrist at VA from April 2016 to September 2016. It was noted that the Veteran was working full time and had a good relationship with his wife. He declined medication during this time period, but was found to be stable in his symptoms and was also participating in group therapy with good progress. In December 2017, the Veteran provided a letter from his private counselor indicating that his condition had an exacerbation. The Veteran was noted as having significant employment difficulties, suicidal and homicidal ideations on a weekly basis, hypervigilance, panic attacks 3 to 5 times per week, struggles with hygiene and personal relationships, and nightmares 4 to 6 times per week resulting in the Veteran sleeping in a separate bedroom from his wife. The Veteran was provided with an additional VA examination in November 2018. He was diagnosed with PTSD, major depressive disorder, and cannibis dependence. The examiner was unable to differentiate the psychiatric symptoms, as they were interrelated. The examination revealed what the examiner considered to be total occupational and social impairment. The Veteran's condition was due to such symptoms as anxiety, depression, suspiciousness, weekly panic attacks, chronic sleep impairment, impairment of short and long term memory, impaired judgement, disturbances in motivation and/or mood, difficulty in adapting to stressful circumstances, impaired impulse control, and suicidal ideation. In particular, the Veteran was still noted as being a realtor, although being unable to sell houses due to his anxiety and depression, rendering him essentially unemployed, and being married for 24 years. It was noted that the Veteran's symptoms had increased considerably within the past couple of years. His depression during that time period had become continuous and impacted everything he did. This included diminished judgment and inability to tend to activities of daily living, including personal hygiene. He also experienced increased suicidal ideation. Due to his symptoms, the examiner further opined that it is unlikely that the Veteran has the ability to continue to effectively engage in the necessary and expected social interactions required in seeking and maintaining gainful employment. Prior to March 2, 2015 The Board finds that the evidence does not support a rating higher than 50 percent prior to March 2015. During that period the Veteran's symptoms were more consistently shown to be of a mild to transient nature, as reflected in the October 2013 VA examination report. In addition, prior to March 2015, the Veteran does not appear to have sought any treatment, and was considered normal when screened in a medical setting for psychiatric problems. Also, he was apparently employed full time working in real estate and there did not appear to be any adverse effects of his condition on that employment. Social engagement appeared to be normal as well, although at times during specific situational stressors, the Veteran expressed frustration with doctors, VA employees, and his step-daughter, but no long-standing issues were noted. As the Veteran was able to productively work a full time job, maintain family relations, and generally take care of activities of daily living, prior to March 2, 2015, the criteria for a rating in excess of 50 percent are not met, and to this extent the appeal is denied. From March 2, 2015 to December 13, 2017 The Board finds that the evidence supports a 70 percent evaluation during this interval. In this regard, it is noted that the RO found that the Veteran's condition had increased in severity to occupational and social impairment with deficiencies in most areas due to the findings of the December 2015 VA examination. These included symptoms of anxiety, depression, suspiciousness, near continuous panic attacks, chronic sleep impairment, mild memory loss, disturbances in motivation and/or mood, difficulty in establishing and maintaining effective relationships, difficulty in adapting to stressful circumstances, suicidal ideation, and intermittent inability to perform activities of daily living which reflected a noticeable increase in severity since the 2013 VA examination and the records dated prior to this time. They are most consistent with the rating criteria for a 70 percent evaluation. The Board, however, notes that the Veteran had actually first begun to display these worsened symptoms when he first sought treatment at the Vet Center in March 2015, 9 months earlier. This was essentially acknowledged by the December 2015 VA examiner, who noted that the Veteran claimed his condition had actually begun to worsen prior to the examination. These symptoms would only later be confirmed by the December 2015 VA examination and were shown to have continued for some time beyond that as well. As such, the Board finds that the increase in severity of the Veteran's disability approximating the criteria for a 70 percent evaluation were met from March 2, 2015, when the Veteran initiated treatment after years of minimal symptoms and no treatment. A higher evaluation is not warranted during this time period, as there is no indication that the Veteran had shown total occupational and social impairment, as he still appeared to be working full time and had a good marriage. From December 13, 2017 The Board finds that the evidence does support a rating of 100 percent beginning December 13, 2017, as opposed to the current effective date of September 10, 2018, thereby representing an increase from 70 percent. In this regard, it is noted that the RO found that the Veteran's condition had increased in severity to total occupational and social impairment due to the findings of the November 2018 VA examination. These included symptoms of anxiety, depression, suspiciousness, weekly panic attacks, chronic sleep impairment, impairment of short and long term memory, impaired judgement, disturbances in motivation and/or mood, difficulty in adapting to stressful circumstances, impaired impulse control, and suicidal ideation which reflected a noticeable increase in severity since the 2015 VA examination and are more consistent with the rating criteria for a 100 percent evaluation. The Board, however, notes that the Veteran had actually first begun to display these worsened symptoms as reflected in a December 13, 2017 letter from his Vet Center medical provider. (This appears to have been recognized by the RO in its selection of a September 2018 effective date. That was the date of the Board's Remand which noted the Vet Center provider's letters as evidence of a possible worsening of symptoms and requiring a new examination.) This is further supported by the November 2018 VA examination, in which it was indicated that the Veteran's increased symptoms had occurred within the past couple of years. Since this increase in severity was first documented in December 2017, the Board concludes the criteria for a 100 percent schedular evaluation for PTSD were met from that December 13, 2017 letter. In conclusion, the evidence of record does not warrant an increased evaluation prior to March 2, 2015; but supports a disability evaluation of 70 percent from March 2, 2015 to December 12, 2017. A 100 percent schedular rating is warranted from December 13, 2017. 2. TDIU 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 either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16 (a). The Veteran was service-connected for PTSD at 50 percent from November 16, 2012; 70 percent from December 2015; and 100 percent from December 13, 2017, with tinnitus at 10 percent for the entire period of appeals and right ear hearing loss and papulosquamous lesions over the body both noncompensable. Thus the Veteran's combined evaluations have been 60 percent from November 16, 2012; 70 percent from December 2015; and 100 percent from December 2017. The Veteran did not meet the schedular requirements prior to December 2015, but did meet the requirements from December 2015 to December 13, 2017. From December 13, 2017 At the outset, in regard to the period after December 13, 2017, the Board notes that the Veteran was already in receipt of a total combined evaluation. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court of Appeals for Veterans Claims' (CAVC) decision in Bradley v. Peake recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC). Bradley v. Peake, 22 Vet. App. 280 (2008). Here, if one of the Veteran's disabilities other than PTSD were determined to qualify for TDIU, an award of SMC may be available during this time period. However, the Board finds this is not applicable under the current facts. In this regard, it is noted that the Veteran has only claimed an inability to work due exclusively to his PTSD. See generally VA Forms 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) (September 2018 and October 2018). There have been no suggestions in the Veteran's statements or the medical evidence of record that any of the Veteran's other service-connected disabilities have contributed in any meaningful way to unemployability. Accordingly, no additional compensation is warranted during this time period. Prior to March 2015 Notwithstanding the above, a TDIU may still be assigned on an extraschedular basis to a Veteran whose disability ratings fail to meet the required minimums. See 38 C.F.R. § 4.16 (b). Where this is warranted, the claim must first be referred by the AOJ to the Director of the Compensation Service for extraschedular consideration. The Veteran has indicated that his service-connected PTSD has resulted in his inability to work full-time gainful employment. In this regard, the Veteran has submitted VAs Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) in September 2018 and October 2018 that indicates that the Veteran had up to a year of college eduction and prior work experience as a realtor, an information technologies engineer with computer training, and a machinist. The Veteran indicated that he last worked March 2, 2015, but had been working full time up to that point. Additionally, during this time period, medical records generally show that the Veteran's service-connected disabilities had mild effects on functioning, including employment, as the Veteran was working full-time throughout this period. Accordingly, due to the Veteran's overall service-connected disability presentation being of a mild nature and no apparent effects on employment noted, as he was employed full time, the Board finds that the evidence of record does not merit referral to the Director of Compensation Service for extraschedular consideration. Thus, prior to March 2, 2015, a TDIU is not demonstrated by the record as the evidence of record fails to show that the Veteran is unemployable due to service connected disabilities. From March 2, 2015 to December 13, 2017 For this period, the Veteran does meet the schedular requirements as discussed above. As such, the inquiry turns to whether the Veteran's service-connected disabilities impaired the Veteran to such a degree that he was not suited for substantially gainful employment. In this regard, the Board finds that service-connected disability does render the Veteran unemployable. As mentioned above, the Veteran had a varied and well-educated background for his occupational standing. Despite the fact that he indicated being unable to work during the time period from March 2, 2015 to December 13, 2017, his reporting in this regard is confusing. His October 2018 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) reflects he became too disabled to work in 1971, he last worked full time in 2002, and his highest earnings in one year were later still, in 2007. Also, available treatment records and VA examinations indicate the Veteran was still working full-time as a realtor during this time period. His symptoms of his PTSD were increased in severity, but overall did not appear to significantly interfere with his employability until December 13, 2017, when his symptoms were so severe it may be concluded he could not perform occupational tasks. Therefore, entitlement to a TDIU for the period from March 2, 2015 to December 13, 2017 also is not warranted. As the evidence fails to establish that the Veteran's service-connected disabilities preclude substantially gainful employment, the criteria for a TDIU are not met, and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim for a TDIU, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. M. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.