Citation Nr: 1749117	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  10-46 018	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD).

2.  Entitlement to a total rating due to individual unemployability caused by service-connected disabilities (TDIU).


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Jane R. Lee, Associate Counsel



INTRODUCTION

The Veteran served on active duty from March 1973 to March 1977.

This appeal is before the Board of Veterans' Appeals (Board) from a January 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted service connection for PTSD and assigned a 30 percent initial rating, effective May 29, 2009.

In June 2015, the Board found that the issue of a TDIU had been raised by the record in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded both issues for further evidentiary development.  

The Board again remanded both issues in May 2017.  A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  While substantial compliance is required, strict compliance is not.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)).

In this case, the AOJ substantially complied with the Board's May 2017 remand instructions by obtaining and associating with the claims file updated VA treatment records, and readjudicating the claims in a July 2017 Supplemental Statement of the Case.


FINDINGS OF FACT

1.  For the entirety of the appeal period, the Veteran's service-connected PTSD is most appropriately characterized by occupational and social impairment with occasional decrease in work efficiency and intermitten periods of inability to perform occupational tasks although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal.



CONCLUSION OF LAW

1. For the entirety of the appeal, the criteria for an initial rating in excess of 30 percent for PTSD have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.126, 4.132, Diagnostic Code (DC) 9411 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Preliminary Matter

In this case, neither the Veteran nor his representative has raised any issues with the duty to notify.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.").

The Board acknowledges that the Veteran refers to VA's duty to assist and requests a new VA examination in his October 2017 appellate brief.  However, the Board previously remanded for a VA examination in its June 2015 remand.  Although a May 2016 VA PTSD examination was scheduled, the Veteran failed to report and failed to provide any explanation or good cause as to why he failed to report to the examination.  The Board notes that "the duty to assist is not always a one-way street.  If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the evidence."  Wood v. Derwinski, 1 Vet. App. 190, 192 (1991).  Additionally, the Board notes that the Veteran has received continuous VA treatment for his PTSD, and that such treatment records reflect his current PTSD symptoms and are now associated with the claims file.

II.  Initial Rating Claim for PTSD


The Veteran contends that an initial rating in excess of 30 percent for PTSD is warranted.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating 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.A. § 1155; 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided.  38 C.F.R. § 4.14.

The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran's PTSD has been currently evaluated at 30 percent under 38 C.F.R. § 4.130, DC 9411 (2017).

A 30 percent rating is warranted 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, and/or mild memory loss (such as forgetting names, directions, recent events).

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; and/or difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is warranted for 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.

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; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name.

In the process of evaluating a mental disorder, VA is required to consider a number of pertinent factors, such as the frequency, severity, and duration of a veteran's psychiatric symptoms.  See 38 C.F.R. § 4.126.  After consideration of these factors and based on all the evidence of record that bears on occupational and social impairment, VA must assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is suffering.  When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126(b).  Ratings are assigned according to the manifestation of particular symptoms, but the use of a 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 (2002).

One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)).

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) or no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in school work).

GAF 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 for Mental Disorders, Fourth edition, p. 46 (1994).

Scores ranging from 51 to 60 reflect more 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 peers or co-workers).  Id. at 47.

Scores ranging from 41 to 50 reflect 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).  Id.

Scores ranging between 31 and 40 are assigned when there is 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 work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work).  Id.

While the Rating Schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores.  See 38 C.F.R. § 4.130.

In this case, a May 2009 private psychological evaluation report by L.G., a licensed psychological associate, and co-signed by A.F., PhD, reflects a diagnosis of chronic severe PTSD with a GAF score of 45.  The Veteran reported problems going to sleep and staying asleep, not watching war military movies or talking about his time in the Air Force, hypervigilance, avoiding crowds, positioning himself with his back to the wall when in public places as he could not tolerate having anyone behind him, having a short fuse, and having a hard time trusting people.  He stated that women complained that he was hard to get close to, and that he had had no long-term relationship since his divorce.  He had problems with his supervisor at work; had problems with memory and concentration, which got him in trouble because he forgot work assignments; and startled easily, which caused problems for him on the job.  On examination, he was cooperative; and had normal dress, anxious mood, restricted affect, somewhat disjointed narrative, limited judgment and insight, and no current suicidal or homicidal ideation.  L.G. stated that the Veteran was severely compromised in his ability to initiate or sustain work relationships because of his hypervigilance and hyperarousal, and was severely compromised in his ability to initial or sustain social relationships due to his isolating behaviors and lack of trust.  He also opined that the Veteran was totally and permanently disabled and unemployable due to the severity of the Veteran's PTSD and his poor prognosis for recovery.

An October 2009 VA PTSD examination reflects the Veteran's report that he had a poor relationship with his wife that was "rocky" and ended in divorce, and that he had limited social relationships as he liked to be by himself and did not like crowds.  He had moderate interest in activities and leisure; and had no history of suicide attempts, violence, or assaultiveness.  He reported current sleep impairment where he slept only one to two hours at a time.  The Veteran worked steadily from 1980 to the present in the Housekeeping or Building Management Services at the Durham VA Medical Center (VAMC).  On examination, the Veteran was well-groomed with normal psychomotor activity and normal speech; cooperative; sometimes distracted; oriented to person, time, and place; and able to maintain minimum personal hygiene.  He had normal affect, mood swings at times of a mild degree, thought process that was sometimes disorganized when anxious, no blockage or looseness in thought content, delusions that people were against him, no hallucinations, fair judgment and insight, no homicidal or suicidal thoughts, no inappropriate behavior, and no problem with activities of daily living.  He had poor remote memory and fair recent and immediate memory; he could not remember his wedding date and misplaced keys and other personal items.  The VA examiner found that the Veteran had chronic PTSD of a mild degree with manifestation of re-experienced traumatic event, which was intrusive with flashbacks, insomnia and nightmares, and an arousal response (jumpy) when he heard noise.  The Veteran avoided stimuli associated with the trauma and had cycles of irritability.  The VA examiner opined that the Veteran had social and occupational impairment that was not total as he had problems with his wife which ended up in divorce, some limitation with social interaction with co-workers, liked to be by himself, and did not like crowds.

A September 2010 private psychological evaluation by L.G. and co-signed by A.F., PhD, reflects chronic severe PTSD with a GAF score of 45.  L.G. stated that the Veteran's PTSD symptoms continued to significantly disrupt his life with impaired sleep (getting up during the night to check locks on doors and windows and waking up sweaty and tired), problems with memory and concentration which affected his ability to be productive at work, isolation from co-workers, and feeling edgy and irritable all the time.  As such, the Veteran reported that supervisors found him hard to get along with, he preferred to spend time at home alone, and he did not trust others.  L.G. opined that the Veteran was totally and permanently disabled.

In his November 2010 VA Form 9, the Veteran stated that his divorce was due to his PTSD symptoms, and that he was unable to establish and maintain effective work and social relationships.

A September 2011 letter from L.G. discussed the Veteran's most recent August 2011 private psychological evaluation.  The diagnosis continued to be chronic severe PTSD with a GAF score of 40.  L.G. stated that the Veteran's PTSD symptoms had worsened and were more intrusive in all areas of his life.  Specifically, he stated that the Veteran had become more hypervigilant and increasingly irritable, did not socialize, isolated himself more, complained that people were "out to get whatever they [could]," and did not trust anyone.  He stayed to himself at church, did not interact with his co-workers, and had more problems on the job.  He also woke up sweaty and got up often during the night and looked out the window.  He avoided any media involving the military.  He was having more problems with his memory and concentration, his hearing was getting worse, and he was having more health problems.  As a result, L.G. found the Veteran to be totally and permanently disabled.

VA treatment records from November to December 2010 reflect diagnoses of PTSD, rule out depression, rule out anxiety disorder, and history of depressive disorder not otherwise specified (NOS).  His GAF scores were 61 and 70.  The Veteran continued to report sleep problems, specifically difficulty falling and staying asleep; nightmares once or twice a week; flashbacks once a week; hypervigilance; exaggerated startle response; avoidance of war movies; withdrawing from friends; and a dislike of crowds.  He also became nervous with increased heart rate and sweating about two or three times a week.  He described his mood as "okay" with calm and reactive affect; mood that fluctuated throughout the day; and energy, appetite, and concentration that varied.  He felt paranoid that people were watching him and noted that he did not trust people.  He always checked behind himself twice at night after locking up and checking the stove.  He attended church, liked to walk and read, and was able to concentrate while working as a housekeeper at the VA hospital.  He lived alone; was divorced in 1980; was not in a relationship; and was close to his siblings, nieces, and nephews.  On examination, he was alert, oriented, calm, and cooperative.  He had regular rhythm, rate, and tone of speech; an okay mood; calm and reactive affect; logical and goal-directed thought process; some paranoia; and fair insight and judgment.  He denied suicidal and homicidal ideation, and visual and auditory hallucinations.

VA treatment records from June 2011 to December 2011 reflect that the Veteran kept in touch with family members, planned on attending his family reunion in September, went to church regularly, and came to the chapel at the VAMC regularly.  He noted that he was interested in a relationships but was scared of marrying the wrong woman, and worked five to seven days a week.  He had good energy and concentration, and continued to enjoy reading Christian books.  He continued to have difficulty sleeping, where it took one to two hours to fall asleep many nights, he only slept three hours some nights but six hours with hydroxyzine, and he had trouble getting back to sleep after noises woke him up.  The Veteran also continued to have discomfort in crowds, check the perimeter of his home at night, have aversion to loud noises, have vague worry or paranoia about others, experience intrusive memories of military experiences, have nightmares about twice a month, feel hyperalert, be irritable at times.  In December 2011, the Veteran reported panic attacks at times.


On examination, he was alert and oriented, calm, and cooperative.  He had regular rhythm and rate of speech that was nonspontaneous, nonpressured, and nonrapid; an okay and congruent mood; euthymic affect; logical and goal-directed thought process; no delusions; intact cognition; and fair insight and judgment.  The Veteran denied homicidal and suicidal ideation, and visual and auditory hallucinations.  The diagnosis was PTSD with a history of depressive disorder NOS and a GAF score of 63.
December 2011, On examination, he was casually dressed, calm, and pleasant.  He had normal rate, tone, and volume of speech; an okay mood; mildly anxious affect; generally direct thought process; no suicidal or homicidal ideation; and fair insight and judgment.  He was assessed with significant PTSD symptoms, although he was still functioning pretty well.  He was diagnosed with anxiety NOS, rule out PTSD, with a GAF score of 64.

June 2012, the Veteran reported continued sleep impairment and irritability.  He awoke after an hour or two of sleep and had trouble getting back to sleep and had to look out the windows as he was worried about people breaking into his house.  He was irritable and isolative, and had poor concentration.  He also did not find it easy to deal with stress at work and did not do much to relax at home.  On examination, he was neatly dressed, calm, and pleasant.  He had normal rate, tone, and volume of speech; an irritable mood; mildly anxious affect; direct thought process; no suicidal or homicidal ideation; and fair insight and judgment.  The diagnosis was anxiety NOS, rule out PTSD.
September 2012, the Veteran continued to report having poor sleep, anxiety, feeling stressed out at work, feeling uncomfortable around others, and difficulty trusting others.  On examination, he was neatly dressed, calm, pleasant.  He had normal rate, tone, and volume of speech; an anxious mood; constricted affect; direct thought process; no suicidal or homicidal ideation; fair insight; and poor judgment.  The diagnosis was anxiety NOS, rule out PTSD, with a GAF score of 64.
February 2014, the Veteran reported significant anxiety and insomnia, sleeping only four hours a night or so, and waking up with every loud noise and checking the windows.  He stated that he had stress at work from not having enough to get everything done, but that work was otherwise going okay.  He spent his free taking care of his home, went out to eat at one of three restaurants once a week when it was not too crowded, and still felt very anxious out in public generally.  On examination, he was neatly dressed, calm, and pleasant.  He had normal rate, tone, and volume of speech; an "okay" mood; euthymic affect; direct thought process; no hopelessness; and fair insight and judgment.  The Veteran was assessed as appearing stable and functioning reasonably well.

July 2014, the Veteran reported that he had been "up and down" with periods of several days to two weeks when he felt depressed with low interest, fatigue, worse sleep, and mild feelings of hopelessness.  He stayed busy with work and stayed to himself and did housework on his days off.  His sleep was still not great as he fell asleep slowly and woke up multiple times during the night to look outside and make sure everything was okay.  He continued to go out to eat once a week at one of three restaurants where he felt comfortable.  On examination, he was neatly dressed, calm, pleasant.  He had normal rate, tone, and volume of speech; an apprehensive mood; mildly anxious affect; direct thought process; no suicidal ideation; and fair insight and judgment.  
April 2015, the Veteran reported that he went out to eat once a week, which was difficult at times, but was doing it "okay."  He also slept poorly some nights and had waking up if he took trazodone, but had problems waking up and having a hard time getting back to sleep without trazodone.  He also had nightmares twice a month or so.  He did not have significant irritability, and relaxed by reading and listening to music.  On examination, he was appropriately dressed, calm, pleasant.  He had normal rate, tone, and volume of speech; a little anxious; congruent and reactive affect; direct thought process; no homicidal or suicidal ideation; and fair insight and judgment.  He was assessed as having significant anxiety and sleep problems, but with PTSD symptoms otherwise fairly well-controlled.
July 2015, the Veteran reported being busy with work, thinking about trying out different churches, and trying to read more and to lean how to use computers.  He stated that he did not have any close friends, but talked with his sister on the phone some.  On examination, he was appropriately dressed, calm, pleasant.  He had normal rate, tone, and volume of speech; mood that was "pretty good;" euthymic affect; direct thought process; no hopelessness; and fair insight and judgment.  He was generally doing well and had some mild anxiety related to his phase of life as he tired to plan for the future.
October 2015, the Veteran reported that he lost his part-time job in July as he was no longer needed, but still worked at the Durham VAMC, which was "going okay."  He stated that he was able to do more things besides work as he had more time off in the evenings now, such as going to bible study two days a week.  He was thinking about walking for exercise and getting a girlfriend.  He was still going out to eat once a week at the same place.   On examination, he was appropriately dressed, calm, pleasant.  He had normal rate, tone, and volume of speech; mood that was "so so;" mildly dysphoric affect; direct thought process; no hopelessness; and fair insight and judgment.  He was diagnosed with PTSD with stable symptoms.

November 2015, the Veteran reported that he had been looking at some other restaurants to "try out," that he tried another church at which he was enjoying doing bible study, that he was thinking about trying a third church soon, and that he had been reading different things but mainly religious books.  He stated that he was thinking about trying to start another relationship, but that a part of him did not want to due to hiw past problems with relationships not working out well.  The Veteran was lived alone, was close to his nephew, and worked in housekeeping at the Durham VA for 36 years.  On examination, he was appropriate dressed, calm, pleasant.  He had normal rate, tone, and volume of speech; mood that was a "little better;" mildly anxious affect; direct thought process; no hopeless; and fair insight and judgment.

An April 2016 VA PTSD examination was scheduled at Durham VAMC, but it was cancelled as the Veteran was an employee there.  Subsequently, the Veteran was scheduled for a May 2016 VA PTSD examination at the W.G. Hefner Salisbury VAMC, but he failed to report.

VA TRs:
April 2016, the Veteran reported stress due to a motor vehicle accident in January, car problems, and the death of a cousin a few days prior.  He still went to and enjoyed church and bible study, and was still interested in a relationship although he expressed worry that he could not trust another enough to do it.  On examination, he was appropriately dressed, calm, and cooperative.  He had normal rate, tone, and volume of speech; an unsettled mood; anxious and reactive affect; tangential thought process; no hopelessness; and fair insight and judgment.  
In November 2016, the Veteran mainly spent time to himself, went to church some, and still ate out some but less than before as some of his usual places had closed.  He was planning on taking computer classes in January and was thinking about walking for exercise.  He was calm, pleasant, and cooperative, with normal rate, tone, and volume of speech; an irritable mood; dysthymic and reactive affect; direct thought process; no hoplessness; and fair insight and judgment.  His PTSD symptoms were assessed as relatively well-controlled.
March 2017, the Veteran noted that he was busy at work, which caused some stress and caused him to feel very tired at the end of the workday.  He went ot bible study at a couple of churches, and attended church on the weekend.  He still was not sleeping well and woke up during the night due to outside noises.  He had euthymic and constricted range of affect and direct thought process.  He was assessed as stable.

In his October 2017 informal hearing presentation, the Veteran's representative contends that a new VA examination is required as the most recent PTSD examination was conducted in October 2009.  As such, if an increased initial rating for PTSD and a TDIU cannot be granted, the representative requests a medical opinion regarding the current severity of the Veteran's PTSD symptoms and whether the Veteran is able to obtain gainful and substantial employment.


ORDER




REMAND





Accordingly, the case is REMANDED for the following action:

1. 







The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
S. B. MAYS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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