Citation Nr: 23014131 Decision Date: 03/08/23 Archive Date: 03/08/23 DOCKET NO. 16-25 336 DATE: March 8, 2023 ORDER An initial 70 percent rating, but not higher, for posttraumatic stress disorder (PTSD), is granted. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted, effective from September 24, 2014. FINDINGS OF FACT 1. For the entire initial rating period on appeal, the Veteran's PTSD resulted in symptoms that approximated social impairment with deficiencies in most areas, but not total social impairment. 2. Beginning September 24, 2014, the Veteran's PTSD and bilateral hearing loss prevented him from securing or following a substantially gainful occupation, consistent with his vocational and educational background. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent rating, but not higher, for PTSD are approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9411. 2. Beginning September 24, 2014, the criteria for an award of a TDIU are 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 served on active duty from February 1970 to February 1972. Procedural History VA received the Veteran's service connection claim for PTSD on September 24, 2014. By a May 2015 rating decision, the RO granted service connection for PTSD and assigned an initial 30 percent rating. The Veteran submitted a June 2015 notice of disagreement (NOD), in which he limited his appeal to a 50 percent rating. He submitted another NOD in August 2015, in which he again limited the appeal to 50 percent. A statement of the case was issued in May 2016, and the Veteran timely perfected his appeal. In November 2019, the Board remanded the appeal to obtain outstanding medical treatment records and to provide the Veteran with a new VA examination. In a July 2020 rating decision, the RO increased the rating for PTSD to 50 percent, effective December 16, 2019, the date of the VA examination. A supplemental statement of the case (SSOC) was issued on the same day. In a February 2022 decision, the Board granted an initial 50 percent rating prior to December 16, 2019, and denied a rating higher than 50 percent for the entire initial rating period on appeal. The Board also remanded the issue of entitlement to a TDIU for further development. A February 2022 rating decision implemented the Board's grant of a 50 percent rating, effective September 24, 2014, the date of claim. In February 2022, the Veteran submitted a formal claim for TDIU, which the RO denied in a September 2022 rating decision. A SSOC denying TDIU was also issued on the same day. In the interim, the Veteran appealed the Board's denial of an initial rating higher than 50 percent for PTSD to the United States Court of Appeal for Veterans Claim (Court), which by a November 2022 Order, granted a Joint Motion for Partial Remand (JMPR) that vacated and remanded the issue back to the Board. In a November 2022 decision, the Board granted entitlement to a TDIU effective July 14, 2017, and remanded the issue of entitlement to a TDIU prior to this date for referral for extraschedular consideration. The RO implemented the Board's grant in a February 2023 rating decision; however, the RO concluded that this was a full grant of the benefits sought on appeal and conducted no further development regarding the issue of entitlement to a TDIU prior to July 14, 2017. The appeal is closed under VACOLS showing "benefits granted." Nevertheless, given the Board's decision herein, granting an increased rating and entitlement to a TDIU, no further development is necessary. Initial Rating for PTSD The criteria for rating psychiatric disabilities, other than eating disorders, are set forth in the General Rating Formula (General Rating Formula) for Mental Disorders. See 38 C.F.R. § 4.130. Under the General Rating Formula, a 50 percent rating 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. A 70 percent rating is warranted if the evidence establishes 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/or inability to establish and maintain effective relationships. Id. A 100 percent rating (total occupational and social impairment) is warranted due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the 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). 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, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, 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. 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. The Board recognizes that the United States Court of Appeals for Veterans Claims (Court) in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA's general Rating Formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating; however, the Court further indicated that, without those examples, differentiating between rating evaluations would be extremely ambiguous. When it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant's favor and the symptoms in question must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating in cases where the DSM-5 applies when the appeal was certified after August 4, 2014. This appeal was pending after August 4, 2014, and as such, only DSM-V apply. Regardless, however, because of the Court's emphatic pronouncement in Golden that the GAF scores are methodologically flawed and are particularly unreliable as applied to psychiatric disorders, in this decision, the Board will place no reliance on GAF scores for rating this Veteran's PTSD. Evidence and Analysis According to October 2014 VA psychology group note, the Veteran noted that he retired in April 2014. He further stated that he was thankful to the union because he was frequently in conflicts on the job-site due to "mouthing off" or "flying off the handle." He had a high school education and worked as a carpenter for 35 years. It was further noted that the Veteran suffered from unprovoked irritability with periods of violence and that he was more often irritable and short-tempered in the previous 5 years. In April 2015, the Veteran underwent a PTSD examination, at which time the examiner confirmed a diagnosis of PTSD. In terms of social impairment, the examiner noted that the Veteran was married from 1975 to 2004, at which time he got divorced because they could not get along. He had two children. In terms of occupational impairment, the examiner noted that the Veteran retired and biked and walked the dog for pleasure. The examiner identified symptoms of depressed mood; anxiety; suspiciousness; chronic sleep impairment; and flattened affect. The examiner concluded that the PTSD resulted in 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 medications. In December 2019, the Veteran underwent another PTSD examination. In terms of social impairment, the examiner noted that the Veteran lived with his girlfriend since 2007 and that she had no children. He spent time doing side jobs for friends as a hobby without getting paid and rode his bike for leisure. In terms of occupational impairment, the examiner noted that the Veteran retired from a carpentry company after 35 years. The examiner identified PTSD symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; impairment of short-and-long term memory; flattened affect; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a work like setting. The examiner concluded that PTSD resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, al-though generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In an individual unemployability statement, the examiner noted that the Veteran had significant difficulty functioning around other people, had difficulty functioning as a team member, and felt uncomfortable around others. In a February 2020 statement, the Veteran's spouse noted that he needed medication to clam down and that the slight little things set him off. On review, the Board finds that a 70 percent rating is warranted for the entire initial rating period on appeal, beginning September 24, 2014. In so finding, the Board notes that the Veteran's PTSD resulted in difficulty in adapting to stressful circumstances including work and a worklike setting throughout the initial rating period on appeal. In this regard, the Board finds both examination reports in 2015 and 2019 cursory at best. The examiners failed to address in detail the Veteran's social impairment or reasons for his retirement, which were clearly attributed to his inability to work with other people. A review of the record showed that with the exception of his current marriage, the Veteran had no other significant relationships. Accordingly, the Board resolved all doubt in the Veteran's favor in finding that the psychiatric symptoms more nearly approximate the criteria for a 70 percent rating throughout the entire initial rating period on appeal. Nonetheless, the Veteran had not been totally socially impaired due to PTSD. He still interacted with some friends and did carpentry work as a hobby and maintained one significant relationship with his current spouse. Total social impairment generally requires symptoms severe enough to severely distort the individual's perception of reality, which is not shown by the record. Overall, the Veteran's psychiatric symptoms did not equate in severity, frequency, or duration to total occupational and social impairment, nor have the symptoms demonstrated a level of severity in symptomatology to approximate or equate to that in the symptoms listed for a 100 percent rating. Additionally, the identified psychiatric symptoms of depressed mood; chronic sleep impairment; difficulty in establishing and maintaining effective work and social relationships; impaired impulse control; and difficulty in adapting to stressful circumstances, including work or a worklike setting, are properly contemplated by the currently assigned 70 percent disability rating. In summary, the criteria for a rating higher than 70 percent, but no higher, for the service-connected PTSD have been met for the entire initial rating period from September 24, 2014, forward. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. TDIU The Veteran was granted a TDIU in the February 2023 rating decision effective July 14, 2017, the date the Veteran met the schedular criteria for a TDIU. As such, the question before the Board is whether TDIU is warranted for the period prior to July 14, 2017. Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16 (a). The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation. Id. See 38 U.S.C. § 1155. Here, with the Board's decision herein, the Veteran meets the schedular criteria effective September 24, 2014 with an initial rating of 70 percent for his PTSD. (Continued on the next page) In this regard, the Board finds that the Veteran's PTSD resulted in total occupational impairment. In addition, his bilateral hearing loss impacted his ability to work as a carpenter due to trouble interacting with others. Accordingly, the Board finds that entitlement to a TDIU is also warranted for the entire initial rating period on appeal. Notably, the Veteran retired and specifically noted that he had difficulties at work due to his PTSD. Furthermore, he was thankful to the union, which helped him keep his job longer despite ongoing problems with coworkers. The 2019 examiner specifically noted that the Veteran had significant difficulty functioning around other people, had difficulty functioning as a team member, and felt uncomfortable around others. Lastly, the audiology examinations noted that the bilateral hearing loss caused functional impairment, and the Veteran noted that he had difficulty hearing others. TDIU is therefore warranted. Finally, neither the Veteran nor his representative raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Colleen M. Glaser-Allen Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.