Citation Nr: 1754222
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 11-01 495 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUES

1. Entitlement to an initial compensable rating for bilateral hearing loss.

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

3. Entitlement to a total disability evaluation based on individual unemployability due to service connected disabilities (TDIU).

REPRESENTATION

Appellant represented by: Attorney Joseph R. Moore

ATTORNEY FOR THE BOARD

C. Howell, Associate Counsel

INTRODUCTION

The Veteran served on active duty from March 1969 to July 1971.

This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, D.C. Jurisdiction now resides at the RO in St. Petersburg, Florida (hereinafter Agency of Original Jurisdiction (AOJ)). In preparing to decide the issue on appeal, the Board has reviewed the contents of the Veteran’s electronic files, including the Content Legacy Manager and Veterans Benefit Management System (VBMS) claims files, using Caseflow Reader. All records are now in these electronic systems.

In September 2014, the Board remanded the appeal for further development. That development has been completed, and the appeal has been returned to the Board for further adjudication.

In an October 2017 statement, the Veteran’s representative requested waiver of initial review by the AOJ for further evidence submitted concerning this appeal. See 38 C.F.R. § 20.1304(c) (2017).

FINDINGS OF FACT

1. In a February 2017 written statement, the Veteran clearly and unambiguously withdrew his appeal for entitlement to an initial compensable rating for bilateral hearing loss.

2. For the entire appeal period, the Veteran’s PTSD has at least as likely as not been manifested by total occupational and social impairment during the entire period of the appeal.

3. The issue of entitlement to TDIU is moot as a 100 percent schedular rating for PTSD has been granted for the entire appeal period, and there is no allegation that his other service-connected disabilities of hearing loss, tinnitus and recurrent nephrolithiasis prevent him from securing or following substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the Veteran’s substantive appeal on the issue of entitlement to an initial compensable rating for bilateral hearing loss have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204 (2017).

2. With resolution of reasonable doubt in the Veteran’s favor, the criteria for entitlement to a 100 percent rating for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411.

3. The issue of entitlement to TDIU is moot. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

To the extent that the action taken below is favorable to the Veteran, further discussion of VA’s duties to notify and assist is not required at this time. See Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001).

Withdrawn Claim

Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. A withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. DiLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). A claimant may withdraw a claim for a higher disability rating when he or she expresses satisfaction with the assigned rating, even when less than the maximum, available benefit has been granted. See AB, 6 Vet. App. at 38.

In a February 2017 written statement, the Veteran clearly and unambiguously indicated that the he wished to withdraw the appeal for entitlement to an initial compensable rating for bilateral hearing loss pending before the Board. See also October 2017 Representative Statement.

Inasmuch as the Veteran has withdrawn his appeal regarding the issues of for entitlement to an initial compensable rating for bilateral hearing loss, there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal on that issue, and it is dismissed.

PTSD

The Veteran seeks entitlement to an initial rating in excess of 30 percent for PTSD since July 27, 2006. See October 2017 Representative Statement.

Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3.

In establishing the appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran’s claim. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating. A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings).

The Veteran’s PTSD is rated at 30 percent disabling since July 27, 2006, under Diagnostic Code 9411. 38 C.F.R. § 4.130.

Under the General Rating Formula for Mental Disorders, a 30 percent rating for unspecified anxiety disorder requires 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 conversational normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). Id.

A 50 percent rating is assigned where there is evidence of 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 assigned where there is evidence of 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; obsession 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 worklike setting); inability to establish and maintain effective relationships. Id.

A 100 percent disability rating is assigned 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; memory loss for names of close relatives, own occupation, or own name.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 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.

Global assessments of functioning scores are 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 the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), page 32). A global assessment of functioning score of 41 to 50 indicates 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). A global assessment of functioning score of 51 to 60 indicates the examiner’s assessment of moderate symptoms (e.g., a 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). A global assessment of functioning score of 61 to 70 indicates the examiner’s assessment of 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 having some meaningful interpersonal relationships.

The global assessment of functioning score assigned in a case, like an examiner’s assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the global assessment of functioning score must be considered in light of the actual symptoms of the veteran’s disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The Board also notes that the global assessment of functioning scale was removed from the more recent DSM-5 for several reasons, including its conceptual lack of clarity and questionable psychometrics in routine practice. See DSM-5, Introduction, The Multiaxial System (2013).

Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to “DSM-IV,” Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association , Fourth Edition (1994). The amendments replace those references with references to the recently updated “DSM-5.” As the Veteran’s claim was certified to the Board by December 2012 (i.e., before August 4, 2014), the DSM-IV is applicable to this case.

The Veteran’s claims file reflects VA and private treatment for PTSD. During a March 2010 VA examination, the examiner determined the Veteran’s PTSD symptoms were “mild.” Upon examination, the examiner observed normal behavior, hygiene, orientation, thought process, and judgement; with no hallucinations, suicidal ideation, or problems with daily activities. The Veteran describes a variety of PTSD symptoms, including nightmares, hypervigilance, and social isolation. He had a GAF of 63. By contrast, March 2010 VA treatment records reflect a GAF of 51. See also January and July 2011 VA Treatment Records.

In March 2011, a private psychiatrist assessed the Veteran. While the assessment focused on the cause of the Veteran’s PTSD, the Veteran reported that his PTSD symptoms were worsening, and included nightmares, flashbacks, an exaggerated startle response, depression, guilt, difficulty working, and difficulty with people and public places. The psychiatrist noted coherent speech, no delusions, no suicidal ideation, and an appropriate but restricted affect. While the Veteran’s concentration was decreased, he was oriented to person, place, and time, and had intact memory and judgment.

During an April 2012 VA examination, the examiner noted that psychological test results suggested exaggeration of psychological problems by the Veteran, and therefore made it impossible to determine what symptoms the Veteran was truly experiencing without resort to speculation. The examiner noted a GAF of 62, and determined occupational and social impairment with occasional decrease in work efficiency.

During an August 2016 VA examination, the Veteran was diagnosed with PTSD and depressive disorder, but the examiner indicated that the symptoms could not be differentiated between disorders. The examiner determined that the Veteran had occupational and social impairment with deficiencies in most areas. The Veteran’s symptoms included depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, including forgetting names and events; disturbances of motivation and mood; difficulty establishing and maintaining effective relationships; difficulty adapting to stressful circumstances; and suicidal ideation.

The Veteran also underwent psychiatric examinations by the same private psychiatrist in October 2013 and October 2017. During both assessments, the psychiatrist appears to have thoroughly reviewed the Veteran’s entire medical and service record, interviewed the Veteran, and cited several medical studies. In October 2013, the psychiatrist found the Veteran to be “profoundly impaired, socially isolated, and completely incapable of normal interactions….” The psychiatrist determined that the Veteran had difficulty performing functions of daily living, did not attend to his personal hygiene, and had suicidal ideation and thoughts of violence. The psychiatrist also reviewed and addressed previous psychiatric assessments and VA examinations, and detailed why he disagreed with previous assessments of the Veteran’s occupational and social functioning, including discussing over-reliance on GAF scores. The psychiatrist determined that the Veteran’s PTSD symptoms were profound, pervasive, intractable, and progressive, and that he had been completely unemployable since 2006.

During the October 2017 assessment, the psychiatrist again determined the Veteran was “completely disabled from PTSD.” The Veteran continued exhibit suicidal and homicidal ideation, and severe mood instability. The psychiatrist addressed the August 2016 VA examiner’s report of over-reporting of symptoms, and determined that the Veteran displayed no malingering or fabricating symptoms after four hours of interviewing the Veteran. The psychiatrist evaluated previous psychiatric testing and referenced 32 clinical studies and medical articles. Ultimately, the psychiatrist found the Veteran to be incapable of occupational interactions, with poor hygiene, extensive distrust, paranoia, irritability, anger, anxiety, and depressive symptomology.

Additionally, the record contains lay statements regarding the Veteran’s PTSD symptomology. In the August 2009 Social Security Administration Function Report, the Veteran’s spouse indicated that the Veteran had to be reminded to shower and take his medication. In a September 2017 letter, his spouse stated that the Veteran exhibited explosive anger, unreasoning thinking, and an inability to cope. An August 2017 letter from an acquaintance noted that the Veteran no longer engaged in his favorite hobby working on small boats, and was withdrawn and argumentative. The spouse and acquaintance are competent to report observations regarding these symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

While the claims file contains some conflicting evidence regarding the extent of the Veteran’s symptomology, the Board finds the private psychiatrist who assessed the Veteran in October 2013 and October 2017 to be the most probative evidence of record. The private psychiatrist reviewed the claims file, interviewed the Veteran, and provided an in-depth analysis of the Veteran’s symptoms and a discussion of other opinions in the claims file with significant references to medical literature to support his opinions and rationale. During the pendency of this appeal, the Veteran’s PTSD symptomology included suicidal and violent ideation, significant difficulty with daily living and hygiene, and several other significant symptoms.

After considering the evidence of record and resolving reasonable doubt in favor of the Veteran, the Board finds that his symptoms appear to most closely reflect the criteria for a 100 percent rating for the pendency of the appeal, with near total occupational impairment and severe social impairment.

TDIU

The Veteran seeks entitlement to a TDIU based on his service-connected disabilities. Based on the above decision, he is currently rated as 100 percent disabled for posttraumatic stress disorder (PTSD); 30 percent disabled for recurrent nephrolithiasis; 10 percent disabled for tinnitus; and service-connected for bilateral hearing loss with a noncompensable rating. See July 2015 Rating Decision Codesheet. Thus, the Veteran meets the eligibility criteria for entitlement to TDIU under 38 C.F.R. § 4.16(a).

However, the Board has awarded a 100 percent schedular rating for PTSD for the entire appeal period. The Veteran does not claim, and the evidence does not suggest, that his other service-connected disabilities of hearing loss, tinnitus and recurrent nephrolithiasis prevent him from securing or following substantially gainful employment. See VA Form 8940 (Veteran’s Application for Increased Compensation Based on Individual Unemployability) received September 2015 (identify only PTSD as resulting in unemployability). Thus, there is no entitlement to special monthly compensation based on a service-connected disability other than PTSD meeting the special monthly requirements. See Bradley v. Peake, 22 Vet. App. 280 (2008). (VA must consider a TDIU claim despite the existence of a schedular total rating and award special monthly compensation (SMC ) under 38 U.S.C. § 1114(s) if VA finds a separate disability supports a TDIU independent of the disability with a 100 percent rating). Thus, the claim for TDIU must be dismissed as moot.

ORDER

The appeal as to the claim for entitlement to an initial compensable rating for bilateral hearing loss is dismissed.

For the pendency of the appeal, entitlement to an evaluation of 100 percent for PTSD is granted subject to the law and regulations governing the award of monetary benefits.

Entitlement to a TDIU rating is dismissed.

____________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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