Citation Nr: 1736690	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  10-32 844	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota


THE ISSUES

1.  Entitlement to higher staged initial ratings for service-connected post-traumatic stress disorder (PTSD), currently rated 30 percent prior to April 21, 2014 and 50 percent from April 21, 2014. 

2.  Entitlement to a total disability rating for compensation based upon individual unemployability (TDIU). 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Baker, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1966 to February 1969.

This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, which granted service connection for PTSD, and assigned a 30 percent initial rating, effective from October 15, 2007.  During the pendency of the appeal, an August 2014 rating decision granted a 50 percent staged initial rating effective from April 21, 2014.

The initial rating matter was previously before the Board in March 2014, and both issues on appeal were before the Board in October 2016, when they were remanded for further development.  The matters now return to the Board for appellate consideration.  The issue of entitlement to a TDIU is properly before the Board.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).


FINDINGS OF FACT

1.  The most probative evidence of record reflects that during the period on appeal prior to April 21, 2014, the Veteran's PTSD was at worst manifested by symptoms productive of functional impairment comparable to occupational and social impairment with a decrease in work efficiency and intermittent periods of inability to perform occupational tasks.

2.  The most probative evidence of record reflects that during the period on appeal from April 21, 2014, the Veteran's PTSD was at worst manifested by symptoms productive of functional impairment comparable to occupational and social impairment with reduced reliability and productivity.

3.  The most probative evidence of record does not demonstrate that it is at least as likely as not that the Veteran's service-connected disability precludes him from maintaining substantially gainful employment consistent with his educational and occupational background.


CONCLUSIONS OF LAW

1.  The criteria for an initial rating in excess of 30 percent for PTSD have not been met for the period on appeal prior to April 21, 2014.  38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2016).

2.  The criteria for a staged initial rating in excess of 50 percent for PTSD have not been met for the period on appeal from April 21, 2014.  38 U.S.C.A. §§ 1155, 5107 (West 2015); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2016).

3.  The criteria for a total disability rating for compensation purposes based on individual unemployability (TDIU) have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  There has been at least substantial compliance with all remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  All VA examinations and medical opinions provided, in the aggregate, are adequate for decision-making purposes.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).


Legal Criteria

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 4.1 (2016).  In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability.  38 C.F.R. §§ 4.1, 4.2 (2016); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7 (2016).  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21 (2016). 

Consideration of the appropriateness of a staged rating, meaning assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others, is required for increased rating claims, irrespective of whether it is an initial rating at issue or instead an established rating.  See Hart v. Mansfield, 21 Vet. App. 505 (2008).  As such, the Board has considered whether different ratings for different periods of time, based on the facts found, are warranted throughout the appeal. 

Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence.  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000).

In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board is not required to accept a veteran's uncorroborated account of his active service experiences.  Wood v. Derwinski, 1 Vet. App. 190 (1991).

The Veteran's PTSD is evaluated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411.  The current regulations establish a general rating formula for mental disorders.  38 C.F.R. § 4.130.  Ratings are assigned according to the manifestation of particular symptoms.  However, the use of the term "such as" in 38 C.F.R. § 4.130 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, 442-3 (2002).  Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code.  Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994).  38 C.F.R. § 4.125; see also Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093 (Aug, 4, 2014) (updating 38 C.F.R. § 4.125 to reference the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition, or "DSM-5").

Pursuant to Diagnostic Code 9411, a 30 percent rating is assigned for 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, mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. § 4.130, Diagnostic Code 9411. 

A 50 percent evaluation is warranted for PTSD 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.  Id.

A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 maximum 100 percent evaluation is for application when there is 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 Global Assessment of Functioning (GAF) is 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 DSM-IV).  According to the pertinent sections of DSM-IV, a GAF score of 81 to 90 represents absent or minimal symptoms.  A GAF score of 71 to 80 indicates that if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument) and result in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork).  A GAF score of 61 to 70 indicates some mild symptoms or some difficulty in social or occupational functioning, but generally functioning pretty well with some meaningful interpersonal relationships.  A GAF score of 51 to 60 indicates moderate symptoms or moderate difficulty in social or occupational functioning.

Although GAF scores are important in rating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria.  See Carpenter, 8 Vet. App. at 242.  Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is considered but is not determinative of the percentage VA disability rating assigned.  The percentage rating is based on all the evidence that bears on occupational and social impairment.  Id.; see also 38 C.F.R. § 4.126.

Analysis

Service connection for the Veteran's PTSD was granted in a December 2008 rating decision, rated at 50 percent effective from October 15, 2007.  An August 2014 rating decision increased the rating to 50 percent from April 21, 2014  Thus the relevant period on appeal for the Veteran's PTSD is from October 15, 2007.  38 C.F.R. § 3.400 (o)(2) (2015); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999).  

The Veteran attended a VA examination to evaluate his PTSD in December 2008.  He indicated that he avoids crowds, and reports irritability, and past anger and violence.  He reports being close with his family.  The Veteran reported continued social activity with decreased mood since he stopped trucking after a brain aneurysm in 2002.  The Veteran reported difficulty sleeping, decreased concentration, and decreased short term memory.  The Veteran had normal speech, and some circumstantial thought.  The Veteran had no hallucinations, suicidal ideation, but did have some reported obsessive thoughts and problems with short term memory.  The examiner assigned a GAF score of around 65-70, and noted mild signs and symptoms causing difficulty in social and occupational functioning.  The examiner attributed at least part of the Veteran's anxiety and depression to his brain aneurysm in 2002.  

The Veteran was seen again in September 2009.  He reported a decrease in interest in certain activities, which corresponded to his aneurysm.  The Veteran again showed difficulty with memory and concentration, but this is attributed to his aneurysm.  The Veteran was still married, and was appropriately dressed and groomed.  The Veteran vaguely reported being able to hear angels without any frequency.  The Veteran was appropriately oriented.  The Veteran's decline in cognitive functioning was not attributed to PTSD.  The Veteran had a GAF score of 67.  The Veteran reported being employed part time and having occasional spats with his supervisor, but that he is well regarded at work and had no concerns regarding his performance.  The Veteran had normal speech, was casually dressed, and had a neutral mood and congruent affect.  

The Veteran attended another VA examination in April 2014.  The examiner stated that it was more likely that the majority of the Veteran's memory loss was due to neurocognitive disorder.  The examiner attributed nightmares, distressing thoughts, hypervigilance, and lack of trust to PTSD.  The examiner opined that the Veteran had an occupational and social impairment with reduced reliability and productivity.  The Veteran stated that his PTSD symptoms will affect him for up to several hours a day.  The occupational and social impairment due to irritability, isolation, concentration, was described as mild to moderate.  The Veteran reported taking breaks three times a week to calm down.

The Veteran's last VA examination took place in December 2016.  That examiner also attributed a majority of the Veteran's memory loss to his neurocognitive disorder, and his nightmares, distressing thoughts, hypervigilance, and distrust to PTSD.  The examiner opined that the Veteran's PTSD resulted in an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  The Veteran's symptoms included depressed mood, memory loss, disturbances in motivation, difficulty with work relationships, and difficulty adapting to stress.  On examination, the Veteran was fully oriented with linear thought.  The Veteran had no hallucinations, delusions, or suicidal thought.  

The Veteran's VA treatment records, private treatment records, lay witness statements, and lay statements are consistent with the level of functioning described in the VA examinations.  Specifically, the Veteran's wife reports mood swings, hypervigilance, arguing, and depression.  2016 VA treatment records show mood doing worse when off medication and intermittent mental health treatment.  The Veteran reported only occasional panic attacks, and no psychotic symptoms.  

For the period on appeal prior to April 21, 2014, the Board finds that the level of impairment clinically attributed to the Veteran's PTSD does not most nearly approximate the next highest rating of 50 percent, or higher.  Prior to the Veteran's April 2014 VA examination, although he indicated he avoided crowds, he reported continued social activity.  He reported strong interpersonal relationships and successful occupational functioning.  The Veteran reported only occasional panic attacks.  There was no demonstration of difficulty with complex commands.  The Veteran did not have suicidal ideation, hallucinations, delusions, near continuous depression, impaired impulse control, poor hygiene, or difficulty adapting to stress.  The Veteran's reported auditory hallucination was noted to perhaps be the Veteran's own thoughts.

While the Veteran showed some circumstantial speech and memory impairment, the VA examiners consistently attribute a majority of cognitive symptoms to a nonservice-connected neurological condition resulting from a 2002 aneurysm.  While the Veteran is competent to report his symptoms, he is not competent to assess that his symptoms are more severe than the rating criteria contemplated by the current 30 percent rating for the period prior to April 21, 2014.  In this regard, he has not been shown to have the requisite skill, or knowledge of applicable law. The Board finds that the competent medical evidence of record does not reflect that the Veteran's PTSD resulted in functional impairment more comparable to occupational and social impairment with reduced reliability and productivity.  

For the period from April 21, 2014, the Board finds that the level of impairment clinically attributed to the Veteran's PTSD does not most nearly approximate the next highest rating of 70 percent, or higher.  The record does not show that the Veteran's PTSD symptoms are of such frequency and severity as to be productive of functional impairment more comparable to occupational or social impairment with deficiencies in most areas.  Despite the symptoms noted above, the Veteran has been shown to have good family relationships, judgment, and thinking.  The Veteran does not have near continuous panic or depression, impaired impulse control, or neglect of personal appearance.  Further, the Veteran does not have persistent delusions or hallucinations, danger to self, or inability to perform daily activities.  

Consequently, the Board finds that ratings in excess of the initial rating of 30 percent prior to April 21, 2014 and 50 percent from April 21, 2014 are not warranted.  As the preponderance of the evidence is against the assignment of higher staged initial ratings, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied.  38 U.S.C.A. § 5107 (b).  

Extraschedular Consideration

The threshold factor for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321 (b)(1) is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  In this case, the Veteran has not asserted, and the evidence does not show, that his PTSD is not adequately contemplated by the applicable schedular rating criteria.  Therefore, discussion of whether an extraschedular rating must be considered is not necessary.  Doucette v. Shulkin, No. 15-2818, 2017 WL 877340 (Vet. App. March, 6, 2017).


TDIU

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16 (a).

Even if the Veteran's service-connected disabilities do not meet the percentage standard, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards, the case should be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration.  

For a veteran to prevail on a claim for a TDIU, the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.  This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  See Van Hoose v. Brown, 4 Vet. App. 361 (1993). 

Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341 , 4.16, 4.19.  Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage.  See Moore v. Derwinski, 1 Vet. App. 356 (1991).  Marginal employment shall not be considered substantially gainful employment.

The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question.  Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).

As noted above, the Veteran's claim for a TDIU arose from application of the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009).  The issue was adjudicated in the first instance in a December 2016 supplemental statement of the case.

The Veteran's only service-connected disability is his PTSD.  The Veteran's single disability was, at worst, rated at 50 percent during the period on appeal.  Thus, the Veteran does not meet the schedular requirements for TDIU.  However, the Board must also consider whether the case should be submitted to the Director, Compensation and Pension Service for extra-schedular consideration.  The first step in this analysis is determining whether the Veteran is capable of following a substantially gainful occupation.  

The record reflects that the Veteran only completed one year of high school, but obtained a high school equivalency diploma.  The Veteran reported having done maintenance and construction after returning from Vietnam, and having problems in getting along with coworkers.  However, the Veteran ran his own trucking business until 2002 when he had an aneurysm.  Specifically, the Veteran has claimed that he quit trucking due to his aneurysm. The record consistently reflects good familial relationships and social interaction, despite some reported irritability and arguing.  After the Veteran stopped trucking, he worked as a custodian for 6 years in a church.  He reported being fired 3 times from that position, and having disagreements with his supervisor.  He then worked for the state until 2015 and then as a seasonal maintenance worker in parks and recreation.  

While the record shows that the Veteran has difficulty in occupational settings due to irritability, lack of concentration, and daily distress from military trauma, the Veteran reports working well in more solitary environments.  Further, the examiners also attribute a majority of his cognitive difficulties to his nonservice-connected aneurysm, and not his PTSD.  The Veteran reported doing well at work during his VA examinations prior to April 2014.  The December 2016 VA examiner opined that the Veteran had significant occupation and social deficits, and that his symptoms as likely as not represent a barrier to his ability to function optimally in vocational and social settings with regard to pace, persistence, and interactions with others.  The Board gives great probative weight to the examiner's opinion.  However, while the Veteran may not be able to function optimally, his long career in trucking provided him a solitary environment where the Veteran reported great success.  The Veteran was also able to maintain employment that involved at least some interaction with a supervisor for several years.  The Veteran last reported that he was working seasonally as a dump truck driver for parks and recreation during the December 2016 VA examination.  The Board finds that the Veteran would likely be limited to unskilled work with limited social interaction. While the Veteran is currently receiving Social Security Disability benefits, they are based largely on evaluation of his nonservice-connected brain injury.

The Board acknowledges the Veteran's statements with respect to his ability to work.  While he is competent to provide statements as to the severity of his symptoms, he is not competent to provide an opinion as to whether his service-connected disabilities result in him being unable to secure and follow a substantially gainful occupation.  See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  He has not been shown to possess the knowledge and expertise to render an opinion that his service-connected disabilities and pain medications rendered him unable to work.  The Board finds that the preponderance of the most probative evidence is against a finding that it is at least as likely as not that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities.  Accordingly, referral of entitlement to a TDIU on an extra-schedular basis is not warranted.  38 C.F.R. § 4.16.  In light of the above, the preponderance of the evidence is against the claim for entitlement to a TDIU.  The benefit-of-the-doubt doctrine is not for application and the claim is denied.  See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.  


ORDER

Entitlement to an initial disability rating in excess of 30 percent prior to April 21, 2014 for the Veteran's service-connected post-traumatic stress disorder (PTSD) is denied.

Entitlement to a staged initial disability rating in excess of 50 percent from April 21, 2014 for the Veteran's service-connected post-traumatic stress disorder (PTSD) is denied.

Entitlement to a TDIU is denied.




____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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