POSTTRAUMATIC STRESS DISORDER (PTSD)

JACQUELINE E. MONROE · 2020 · Case ID: 20081881

MIXED

Summary

The veteran, who served in the United States Marine Corps from September 1965 to August 1970, appeals the denial of a higher rating for posttraumatic stress disorder (PTSD) and entitlement to a total disability based on individual unemployability (TDIU). The Board found that for the period prior to July 24, 2010, the veteran's PTSD symptoms, including intrusive thoughts, nightmares, irritability, hypervigilance, avoidant behaviors, marital discord, social detachment, and sleep difficulties, warranted no more than a 50 percent rating. However, for the period from July 24, 2010, onward, the Board found that the veteran's symptoms, such as neglect of hygiene, significant hypervigilance, exaggerated startle response, obsessive rituals interfering with sleep, depressed mood, irritability, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbance of motivation, difficulty in relationships, and intermittent inability to perform daily living activities, more closely approximated the criteria for a 70 percent rating. The Board resolved all reasonable doubt in the veteran's favor for this period. Regarding TDIU, the Board found that the veteran's service-connected disabilities, primarily PTSD, rendered him unable to secure or follow substantially gainful employment since at least August 2009. The Board granted TDIU, noting the veteran's employment history, vocational limitations due to PTSD, and the opinions of private and VA examiners supporting unemployability.

Rationale

Prior to July 24, 2010, symptoms indicated no more than occupational and social impairment with reduced reliability and productivity.; From July 24, 2010, symptoms approximated deficiencies in most areas, warranting a higher rating.; Resolving all reasonable doubt in the veteran's favor, the criteria for a 70 percent rating were met from July 24, 2010.

Service Branch

MARINE CORPS

Special Benefit

TDIU

Docket No.

12-27 719

Full Decision Text

Citation Nr: 20081881
Decision Date: 12/31/20 Archive Date: 12/31/20

DOCKET NO. 12-27 719
DATE: December 31, 2020

ORDER

An initial rating greater than 50 percent for posttraumatic stress disorder (PTSD), from August 10, 2009 through July 23, 2010, is denied.

A 70 percent rating for PTSD, from July 24, 2010, is granted, subject to the legal authority governing the payment of compensation.

The claim of entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities, particularly, PTSD, is granted.

FINDINGS OF FACT

1. Prior to July 24, 2010, the Veteran’s psychiatric symptoms included intrusive thoughts/images and nightmares related to trauma, mild depressed mood, irritability, hypervigilance, avoidant behaviors (including alcohol abuse), marital discord, feelings of social detachment, and difficulty sleeping. Collectively, these symptoms are of the type and extent, frequency and/or severity (as appropriate), to indicate no more than occupational and social impairment with reduced reliability and productivity.

2. Since July 24, 2010, the Veteran’s psychiatric symptoms have primarily included neglect of hygiene, significant hypervigilance, exaggerated startle response, obsessive rituals that interfere with sleep, depressed mood, irritability, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, the potential to express anger and hostility readily through verbal or physical means, avoidance, difficulty concentrating, social detachment, avoidant behaviors (including alcohol abuse), intrusive thoughts/images and nightmares, difficulty in establishing and maintaining effective relationships (work and social), difficulty adapting to stressful circumstances, and intermittent inability perform activities of daily living. Such symptoms are of the type and extent, frequency, or and severity to suggest no more than occupational and social impairment with major deficiencies in most areas, such as family relations, judgment, thinking, and mood.

3. The percentage requirements for a schedular TDIU are met, and competent, probative evidence indicates that the Veteran's service-connected disabilities, primarily, his PTSD, have, as likely as not, precluded substantially gainful employment consistent with his education and occupational experience

CONCLUSION OF LAW

1. The criteria for a rating greater than 50 percent for PTSD, from August 10, 2009 to July 23, 2020, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411.

2. Resolving all reasonable doubt in the Veteran's favor, the criteria for a 70 percent, but no higher, rating for PTSD, from July 24, 2010, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, DC 9411.

3. Resolving all reasonable doubt in the Veteran's favor, the criteria for a TDIU due to serviced-connected disabilities, particularly, PTSD, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from September 1965 to August 1970.

This appeal to the Board of Veterans’ Appeals (Board) arose from an April 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2010, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in August 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2012.

In July 2015, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record.

In September 2015, the Board, inter alia, remanded claims on appeal for higher ratings for PTSD, residuals of right ankle disability, right (minor)
Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2010, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in August 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2012.

In July 2015, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record.

In September 2015, the Board, inter alia, remanded claims on appeal for higher ratings for PTSD, residuals of right ankle disability, right (minor) acromioclavicular separation, and bilateral hearing loss to the agency of original jurisdiction (AOJ) for additional development. After accomplishing further action on remand, in a February 2016 rating decision, the AOJ assigned a 50 percent rating for PTSD, effective September 4, 2012. However, that claim, as well as the other higher rating claims on appeal, were otherwise denied (as reflected in a February 2016 supplemental statement of the case (SSOC)), and the matters were returned to the Board.

In October 2017, the Board granted a higher, 50 percent rating for PTSD from August 10, 2009, to September 4, 2012, but denied any higher rating for that disability; and, again, remanded the remaining higher rating claims on appeal to the AOJ for further action.

Subsequently, the Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2018 Order, the Court granted a Joint Motion for Partal Remand, filed by representatives for the VA Secretary and the Veteran, vacating the Board’s decision to the extent that it denied a rating greater than 50 percent for PTSD, and remanding that matter to the Board for further proceedings consistent with the Joint Motion.

In September 2019, the Board, in turn, remanded the claim for higher rating for PTSD to the AOJ for further development consistent with the Joint Motion. After accomplishing further action, the AOJ continued to deny a rating greater than 50 percent for service-connected PTSD, as well as entitlement to a TDIU (as reflected in the August 2020 SSOC), and returned the matters to the Board.

As a final preliminary matter, the Board notes that in the September 2019 remand, the Board characterized the appeal as also encompassing the matter of the Veteran’s entitlement to a TDIU due to service-connected disabilities, including disabilities involving claims for higher ratings not then before the Board. To date, the AOJ has not yet completed its actions on the higher rating claims for residuals of right disability, right (minor) acromioclavicular separation, and bilateral hearing loss, and has yet to return those matters to the Board. As such, those matters are not currently before the Board, but will be the subjects of a future appellate decision.

The Board is now satisfied that all notification and development actions needed to fairly adjudicate the increased rating and TDIU claims on appeal have been accomplished, and will now proceed with a decision on those matters.

1. Evaluation of PTSD

Disability ratings are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38C.F.R. §4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38C.F.R. § 4.3.

Generally, a veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating following an award of service connection, evaluation of the medical evidence since the award to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found
. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating following an award of service connection, evaluation of the medical evidence since the award to consider the appropriateness of "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).

Here, the 50 percent rating for the Veteran’s PTSD has been assigned under DC 9411. However, the actual criteria for rating psychiatric disabilities other than eating disorders are set forth in a General Rating Formula for Mental Disorders (General Rating Formula). 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 per week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent rating is warranted 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); inability to establish and maintain effective relationships. Id.

A 100 percent rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; 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.

As the United States Court of Appeals for the Federal Circuit has explained, evaluation under 38 C.F.R. § § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas"-i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § § 4.130, Diagnostic Code 9411.

When evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "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." 38 C.F.R. § § 4.126(a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § § 4.126(b).

Historically, psychiatric examinations frequently included assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of
, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "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." 38 C.F.R. § § 4.126(a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § § 4.126(b).

Historically, psychiatric examinations frequently included assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF 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 GAF 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). [Parenthetically, the Board notes that the, revised DSM-5, which among other things, eliminates GAF scores, applies to cases certified to the Board after August 4, 2014. See 79 Fed. Reg. 45,093 (Aug. 4, 2014))].

Turning to the pertinent evidence of record, the report of an April 2009 VA PTSD consultation indicates that the Veteran was struggling with intrusive thoughts/images and nightmares related to trauma, irritability, hypervigilance, avoidant behaviors (including alcohol abuse), marital discord, feelings of social detachment, and difficulty sleeping. He reported concerns about his level of alcohol consumption. The Veteran presented appropriately dressed, with good hygiene. He was alert and oriented in all spheres. He was polite and cooperative throughout the interview. His affect appeared well-organized as evidenced by clear, coherent speech. He denied suicidal and homicidal ideations. He did not appear at current risk for harm to self or others. There was no obvious evidence of impairment in his memory, language, or attention abilities. His insight and judgment appeared fair as evidenced by his stated desire for treatment. The examiner assigned a GAF of 60.

Beginning in May 2009, the Veteran regularly attended group counseling for PTSD.

During a November 2009 private psychological evaluation, the Veteran reported that he was close to his wife. He was also close to his brothers and kept in touch with them. When asked how he got along with people, the Veteran stated that it depended on who they were. He reported that in the past, he had “gone off” on friends and family due to disagreements. He stated he realized that he went overboard, and he regretted many of the things he said and did. He stated he did not take “bull crap” from people, and at times, it almost came to the point where he would want to fight. He reported that after he came back from Vietnam, he got into fights where he hurt people. He reported his last physical altercation occurred three years ago. He had friends, and some of his friends visit him in his house. He reported his brother visits him once a year. He was looking for a church. For fun, he liked to go fishing, play golf, and do things around the house. He was able to perform his activities of daily living independently. He did the shopping, yard work, and cooked, and his wife did the other housework.

The examiner noted that, objectively, the Veteran’s grooming was considered average. The Veteran presented with clear speech and good eye contact, and there was no evidence of a thought disorder. Affect ranged from appropriate to sad with the Veteran being tearful and crying when he talked about his experiences in the Vietnam War. He was oriented in all spheres. He reported his usual mood was happy as long as people did what he told them to do, but he was also irritable, on edge, and moody. He had problems sleeping, and still had bad dreams about the war. He reported that he crawled in bed and had hit his wife when having dreams about the war. When asked about his energy level, he stated he got tired and felt worn out sometimes. He was always suspicious of strange noises and is constantly listening. He never relaxed because he was constantly “watching and on edge.” He reported there was always a potential for harm, and he carried a gun. He denied hallucinations. He reported never attempting suicide and did not present with suicidal ideations. Testing revealed that the Veteran presented with a severe level of PTSD symptoms. The examiner assigned a GAF of 51.

On March 2010 VA examination, the Veteran reported a mild depressed mood once every 2-3 weeks, lasting a day or two at a time. The Veteran described his current marriage as tolerable. He acknowledged that anger had been in issue but denied being physically aggressive. The Veteran admitted that during his previous marriage, he pushed his previous wife “around but never smacked her.” He had two local close friends and two friends from the Marines. On a social scale, the Veteran did chores around the house, went out to eat occasionally, and traveled once a year. The Veteran also reported a history of fighting, with the most recent occurring 2-3 year prior and under the influence of alcohol, which is usually an aggravator. He further reported drinking 2-12 beers a day, 4-7 days a week, indicating a diagnosis of alcohol dependence. Otherwise, the examiner indicated recurrent and intrusive distressing thoughts of his military service, social detachment, and mild but chronic issues with sleep disturbance, concentration, hypervigilance, startle response, and avoidance of associated stimuli. The Veteran also experienced irritability/anger and mild intrusive thoughts multiple times a week, as well as weekly occurrences of triggering events and nightmares.

On examination, the Veteran presented clean, and appropriately dressed in casual clothes. His speech was unremarkable, and his affect was normal. The examiner described his mood as “a little uptight.” Although his attention was intact, the Veteran was not intact to time and gave the wrong date. His thought processes appeared well-organized as evidenced by clear, coherent speech. The examiner assigned a GAF score of 62.

The report of a July 2010 private psychological assessment indicates that the Veteran claimed his PTSD caused emotional numbness, social isolation, conflict with his spouse, and lowered his frustration tolerance. He believed that his symptoms had increased in severity and was reporting current thoughts of death, albeit with no suicidal ideation. The Veteran was retired from the Sherriff’s Department where he worked as a Deputy for 25 years. Prior to that, he worked as a police officer and a Border Control Agent. He appeared to have no difficulty handling the stresses and demands of his jobs. However, he received warnings and suspensions for calling off work. His drinking would keep him from getting to work on time. He also had problems with supervisors. Symptoms included trouble sleeping and nightmares, avoidance, irritability, outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. The examiner noted that the Veteran’s symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning.

On examination, the Veteran presented as alert, fully oriented, and generally cooperative. He was appropriately dressed, with good grooming and hygiene. His expressions and mannerisms were appropriate, and he made good eye contact. The Veteran described his mood as “sad” and his affect appeared constricted. He was frequently wiping tears away but wept when talking about his experiences in group therapy. His speech was normal. Thought processes were spontaneous, logical, and coherent. There was no evidence of disturbance in form or thought, but he did have issues with suspicions and misperceptions. He experienced visual and auditory hallucinatory activity. There appeared to be significant impairment in delayed recall. His concentration was moderately impaired. Insight and judgment were satisfactory. He denied suicidal or homicidal ideation and past attempts. Other testing revealed likely difficulties in interpersonal relationships and impairment in work performance. He was likely to have a quick temper and the potential to express anger and hostility through verbal or physical means. His profile suggested significant potential for social detachment and
appeared constricted. He was frequently wiping tears away but wept when talking about his experiences in group therapy. His speech was normal. Thought processes were spontaneous, logical, and coherent. There was no evidence of disturbance in form or thought, but he did have issues with suspicions and misperceptions. He experienced visual and auditory hallucinatory activity. There appeared to be significant impairment in delayed recall. His concentration was moderately impaired. Insight and judgment were satisfactory. He denied suicidal or homicidal ideation and past attempts. Other testing revealed likely difficulties in interpersonal relationships and impairment in work performance. He was likely to have a quick temper and the potential to express anger and hostility through verbal or physical means. His profile suggested significant potential for social detachment and discomfort in close relationships. He was likely to have little apparent interest or investment in social interactions. It was likely that the affective quality is consistently negative. The examiner assigned a GAF of 40.

A March 2014 VA psychology note indicates that the Veteran continued having difficulty with effective anger management. He described two recent incidents in which an anger outburst led to some negative consequences. He expressed concern about the ways in which anger affected his relationship with his wife. He stated recognition that his pattern of drinking could become problematic. He mentioned that he visited a bar with friends about once a week and consumed about eight to nine drinks within the course of five hours. He arrived early for the appointment with casual dress and good hygiene. His affect appeared appropriately tearful at times and congruent with reported dysphoric mood. His thought processes appeared well-organized as evidenced by clear, coherent speech. Suicidal and homicidal ideation, intent, and plan were not reported. He appeared to have good insight and judgment. The examiner assigned a GAF of 65.

VA social work notes dated April 2014 through October 2014 indicate that the Veteran was accurately oriented times four. Grooming, attire, and hygiene were adequate, and he was dressed appropriately. Eye contact was positive. He presented as polite, cooperative and open. His mood was moderately anxious or euthymic with congruent affect. He denied any suicidal/homicidal ideation or hallucinations. Thought processes were logical, lucid and fluid while content was relevant and appropriate. There was no evidence of thought disorder or psychosis. Speech was clear and articulate. Insight into condition appeared adequate. Social judgment appeared adequate. No deficits were noted in recent or remote memory. The Veteran denied use of alcohol or street drugs. The Veteran reported anger, anxiety, difficulty managing his temper, as well as his lack of interest in activities due to his avoidance.

During the July 2015 Board hearing, the Veteran testified that, a few months prior, he yelled at a tax collector that game to his house. See Board Hearing Transcript, pg. 4. He further testified that he frightened his wife and her friend, and his wife did not come home for the rest of the day. Id. at pg. 5. He reported thoughts of hurting others when he becomes agitated. Id. When questioned about his current employment, the Veteran testified that he was retired, and that he was not forced to retire. Id. at pg. 8. When questioned about whether he had any close friends, the Veteran testified that he had “one or two good friends that I hang around with.” Id.at pg. 10. Additionally, the Veteran endorsed that he often had thoughts of hurting people. He went on to explain “I’m afraid that I just won’t quit and then...they’ll either kill me or I’ll end up killing...or hurting somebody real bad and that happened a couple times where I did hurt somebody.” The Veteran also testified that his wife reminds him to put clean clothes on. He also reported obsessive rituals disturbing routine activities, such as sleep. Specifically, the Veteran would get up in the middle of the night and check the doors multiple times or sit on his patio because he could not sleep.

A February 2016 VA treatment note indicates that the Veteran contemplated homicidal ideation. Specifically, the Veteran indicated that “he would hurt someone today if the wrong button was pushed.”

During a February 2016 VA psychological assessment, the Veteran reported that his symptoms of depression and agitation/anger seemed to have been getting worse in the past few months. He stated that he experienced an auditory and visual hallucination three weeks prior involving an aircraft he believed he had seen crash near his property. He stated that he began shaking and became physically ill. Reportedly, it was about 20 to 30 minutes before he realized it was not real. On follow up later that month, the Veteran reported that he had not had any more auditory or visual hallucinations. The examiner found that the Veteran’s signs and symptoms of depression remained moderate to severe.

On February 2016 VA examination
if the wrong button was pushed.”

On February 2016 VA examination, the Veteran reported that he continued to reside with his wife. He reported relating “ok” with his wife, and that “I think she understands a little better what’s going on in regard to my PTSD.” He reported having two close friends with whom he spent time occasionally. He described a typical day as spending time doing things around the house. He may “go get a few beers with buddies” in the afternoon. Noted symptoms included depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The Veteran reported anger/irritability and depression “quite often.” anxiety, and feeling overwhelmed approximately three times a week, stating “I feel like I am going to explode.” Behaviors indicative of significant hypervigilance and startle response were also indicated. The Veteran reported intrusive thoughts during the day and nightmares at night that he had been avoiding by drinking. He also reported as feeling or acting as if traumatic events were recurring. He presented on time, with casual dress and good hygiene. He was fully oriented, and was polite, pleasant, and cooperative throughout the exam. His affect appeared dysphoric and congruent with reported mood. His thought processes appeared well-organized as evidenced by clear, coherent speech. There was no evidence of psychosis. He denied suicidal or homicidal ideation, intent or plan. He appeared to have good insight and judgment. The examiner found occupational and social impairment with reduced reliability and productivity.

During a July 2019 private TDIU vocational assessment, the Veteran reported difficulty concentrating and completing simple household tasks due to hypervigilance, flashbacks, anxiety, and impaired motivation. He reported, “my wife says I never finish anything.” He added, “I walk away, and I just leave it. I become overwhelmed.” The Veteran also has a lot of difficulty remembering things, like performing household chores as requested by his wife. He also reported his overall daily lack of motivation and energy precludes his ability to complete tasks or “do anything.“ During the assessment, the Veteran also reported experiencing panic attacks “every few days” as well as flashbacks which can be brought on by certain smells or unexpected sounds. As for his interpersonal difficulties, the Veteran isolates daily and prefers to be left alone. He avoids leaving home to perform even simple tasks such as grocery shopping due to hypervigilance and the inability to trust people. His irritability and low frustration tolerance also contribute to his tendency to isolate. Also, although he bathes independently, he avoids bathing more than twice a week due to a lack of motivation.

Occupationally, the Veteran also reported issues while working at the Williston Airport from August 2015 to June 2016. Reportedly, there, he began hallucinating on a near-daily basis. After a hallucination, he noticed that he was sweating profusely, anxious, and unable to continue working. After that hallucination, the Veteran left work early and resigned a few days later. During his time as a deputy sheriff, the Veteran experienced difficulty interacting with his supervisors and was involved in multiple verbal altercation throughout his 25-year career. Specifically, he received several written remands for arguing with his supervisors. He also got into altercations with arrestees in which he would use extra force. Additionally, the Veteran was repeatedly reprimanded for excessive tardiness and absenteeism. He reported being late to work two to three times per week and being absent 3-4 times per month due to a lack of motivation. As for his psychiatric treatment, the Veteran was intermittently treated by a VA therapist and attended a 12-week group therapy program at the VA. However, he reported leaving group meetings early and subsequently was unable to remain in the group due to his difficulty interacting with others.

On August 2019 VA examination, the Veteran reported that he has okay relationships with family members. He further stated that “it’s just my wife. Sometimes it’s tumultuous...with some yelling”. He also indicated that he struggles to make and maintain social relationships. Specifically, he stated,” I have one friend who I’ve known for about forty years. I don’t see him much anymore.” During
3-4 times per month due to a lack of motivation. As for his psychiatric treatment, the Veteran was intermittently treated by a VA therapist and attended a 12-week group therapy program at the VA. However, he reported leaving group meetings early and subsequently was unable to remain in the group due to his difficulty interacting with others.

On August 2019 VA examination, the Veteran reported that he has okay relationships with family members. He further stated that “it’s just my wife. Sometimes it’s tumultuous...with some yelling”. He also indicated that he struggles to make and maintain social relationships. Specifically, he stated,” I have one friend who I’ve known for about forty years. I don’t see him much anymore.” During the examination, the Veteran exhibited symptoms of depressed mood, anger/irritability, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, difficulty in establishing and maintaining effective relationships (work & social), difficulty adapting to stressful circumstances, and intermittent inability perform activities of daily living.

In observing the Veteran’s behavior, the examiner indicated that the Veteran was alert and oriented. He was casually dressed, adequately groomed, and made appropriate eye contact. His mood was calm, and his affect was congruent. His speech was logical, intact, and goal directed with initiated spontaneous conversation on a few instances. His thought process was within normal range. He denied hallucinations, delusional thoughts, homicidal/suicidal ideation, and self-injurious intent.

As for functional ability, the examiner indicated that the Veteran would be likely to evidence frequent tardiness and/or absenteeism. He was also prone to making careless errors, leaving tasks incomplete, and/or taking an inordinate amount of time to complete tasks due to problems with executive functioning (i.e. planning, organization, attention/concentration, and memory). He also struggled with anger/irritability which could lead to verbal/physical outbursts of anger with co-workers, supervisors, and/or customers. Additionally, he experienced flashbacks which cause disorientation and lead to outbursts of anger. The examiner concluded that the Veteran experienced occupational and social impairment with deficiencies in most areas. Also, the Veteran’s symptoms of PTSD progressed into an additional diagnosis of major depressive disorder. However, the examiner indicated that it is not possible to differentiate what symptoms are attributable to each diagnosis.

Based on the foregoing evidence, including the medical treatment records and the lay statements of record, the Board finds that for the period prior to July 24, 2010, the Veteran's psychiatric symptoms included thoughts/images and nightmares related to trauma, mild depressed mood, irritability, hypervigilance, avoidant behaviors (including alcohol abuse), marital discord, feelings of social detachment, and difficulty sleeping. Collectively, these symptoms are of the type and extent, frequency or severity (as appropriate), to indicate no more than occupational and social impairment with reduced reliability and productivity—the level of impairment contemplated in the 50 percent rating

The Board further finds that for this period, the Veteran was not shown to experience most of the symptoms listed in the criteria for the next higher, 70 percent rating as examples of those of the type and extent, frequency, and/or severity to result in major deficiencies in most areas. Notably, the Veteran consistently denied suicidal ideation. He did not report obsessional rituals which interfere with routine activities. His speech had been within normal limits throughout this time period. Although he has exhibited mild depression and irritability/anger, there is no showing that the Veteran was unable to function independently, appropriately and effectively. Specifically, he was able to complete hobbies within the home and engage in extracurricular activities outside the home. He was not shown to have impaired impulse control, spatial disorientation, or neglect of personal appearance and hygiene. Finally, an inability to establish and maintain effective relationship also was not shown. Indeed, the Veteran maintained close relationships with his wife, friends, and brothers.

The Board further finds that none of the GAF scores assigned between August 10, 2009 and July 24, 2010 provides a basis for assignment of any higher rating. Prior to the July 2020 private psychological assessment (during which a GAF of 40 was assigned), the Veterans GAF scores were record as 60, 51, and 62.

Under the DSM-IV, GAF scores ranging from 51 to 60 are indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning.

Notably, per the DSM-IV, the GAF scores assigned during this period are indicative of no more than mild to moderate overall impairment, and, are thus, are clearly consistent with no more than the 50 percent rating assigned. Again, the Board notes that the Veteran denied suicidal ideation and did not report obsessional rituals which interfere with routine activities. Although he has exhibited mild depression and irritability/anger, there is no showing that the Veteran was unable to function independently, appropriately and effectively. Specifically, he was able to complete hobbies and chores within the home, and engage in extracurricular activities with his wife, close friends, and brothers outside the home.

Thus, the Board finds that, for the pertinent period prior to July 24, 2010, the Veteran's PTSD more nearly approximated the level of occupational and social impairment with reduced reliability and productivity.

However, the Board also finds that, with resolution of all reasonable doubt in the Veteran's favor, since July 24, 2010, the Veteran's PTSD symptoms have more closely approximated occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, and mood—the level of impairment contemplated in the next higher, 70 percent rating.

In this regard, the evidence pertinent to this period reflects that the Veteran has had symptoms and overall impairment that correspond to the criteria for a 50 and a 70 percent rating. In particular, the Veteran's symptoms have included some neglect of hygiene, significant hypervigilance, exaggerated startle response, obsessive rituals that interfere with sleep, depressed mood, irritability, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, the potential to express anger and hostility readily through verbal or physical means, avoidance, difficulty concentrating, social detachment, avoidant behaviors (including alcohol abuse), intrusive thoughts/images and nightmares, difficulty in establishing and maintaining effective relationships (work & social), difficulty adapting to stressful circumstances, and intermittent inability perform activities of daily living. Moreover, the Veteran has indicated that he has had significant difficulties socially and occupationally due to his PTSD, and medical professionals have assessed the severity of such symptoms and to the level of functional impairment due to such symptoms as ranging from moderate to severe.

Although the Veteran reported a close relationship with his wife and brothers on private November 2009 evaluation, he further identified his anger issues with friends and family, almost bringing him to the point where he would want to fight. The Veteran’s recurrent anger issues also spilled into occupational life as a sheriff’s deputy, where he would use excessive force on arrestees and yell at superiors. In some instances, the Veteran also contemplated killing people who he physically fought. Apparently, the Veteran’s willingness to fight also increased when he used alcohol, which could be 4-7 days a week and 2-12 beers at a time, as stated in March 2014 VA note. The Veteran also experienced frequent problems sleeping and nightmares related to service. When the Veteran could not sleep, he would check the doors of his house multiple times, as part of his obsessive ritual. He also appeared to have a severe case of paranoia due to his inability to relax, the ongoing “potential” for harm, and his frequent need to carry a gun.

While the Veteran’s grooming appeared normal during examinations, the Veteran has admitted that he usually only showers twice a week due to his lack of motivation. See July 2019 TDIU vocational assessment. As a part of his July 2015 Board hearing testimony, the Veteran also pointed out that his wife reminds him to put clean clothes on. During his time as a deputy sheriff, his lack of motivation to get out of bed frequently led to warnings and suspensions for tardiness and calling off work, as he stated during his July 2020 private assessment. Around that time, the Veteran also started experiencing visual and auditory hallucinatory activity, which increased in severity when he worked at the airport. See February 2016 VA psychological assessment. Moreover, the latest August 2019 VA examiner indicated that the Veteran experienced occupational and social impairment with deficiencies in most areas, which approximates a 70 percent rating. Therefore, in sum, given that there has been PTSD symptoms listed in the 50 and 70 percent criteria, and an indication of both moderate to severe impairment affecting social and occupational functioning, the evidence is, at least, in equipoise as to whether the Veteran's
to warnings and suspensions for tardiness and calling off work, as he stated during his July 2020 private assessment. Around that time, the Veteran also started experiencing visual and auditory hallucinatory activity, which increased in severity when he worked at the airport. See February 2016 VA psychological assessment. Moreover, the latest August 2019 VA examiner indicated that the Veteran experienced occupational and social impairment with deficiencies in most areas, which approximates a 70 percent rating. Therefore, in sum, given that there has been PTSD symptoms listed in the 50 and 70 percent criteria, and an indication of both moderate to severe impairment affecting social and occupational functioning, the evidence is, at least, in equipoise as to whether the Veteran's disability picture more closely approximates the criteria for a 70 percent rating for the entire period under consideration. As such, and resolving all reasonable doubt in favor of the Veteran, from July 24, 2010, the criteria for a 70 percent rating for PTSD are met.

However, the Board finds that the Veteran's PTSD has not met, or more closely approximated, the criteria for a 100 percent rating at any point since July 24, 2010. In this regard, at no point has the Veteran manifested 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, or memory loss for names of close relatives, own occupation, or own name.

The Board further finds that the GAF score of 40 assigned by the July 2010 private examiner is consistent with no more than a 70 percent, but no higher, rating. Under the DSM-IV, GAF scores from 41-50 are indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).

For all the foregoing reasons, the Board has resolved all reasonable doubt in awarding a higher a higher, 70 percent rating for the Veteran's PTSD from July 24, 2010, but finds that the preponderance of the evidence is against assigment of a rating greater than 50 percent prior to that date, or a rating greater than 70 percent from that date. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

2. Entitlement to a TDIU

Where the schedular rating is less than total, a total disability rating for compensation based upon individual unemployability may be assigned when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a).

As indicated above, the Board has awarded a higher, 70 percent rating for the Veteran's PTSD from July 24, 2010. Prior to this award, service connection was in effect for PTSD, rated as 50 percent disabling; residuals of right ankle disability, rated as10 percent disabling; right (minor) acromioclavicular separation (shoulder disability), rated as 20 percent disabling; bilateral hearing loss, rated as zero percent disabling (noncompensable); tinnitus, rated as 10 percent disabling; and right lower chest scar, rated as noncompensable. Hence, the percentage requirements for a schedular TDIU are met. Thus, the remaining question is whether one or all of the Veteran's service-connected disabilities has/have rendered him unemployable.

VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992).

The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).

The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363.

Considering the pertinent evidence of record in light of the applicable legal authority, and resolving all reasonable doubt in the Veteran's favor, the Board finds that a TDIU is warranted.

During a November 2009 private psychological evaluation, the Veteran reported that he worked as a police officer in Rhode Island for seven years. He then worked for the US Border Patrol for one year, before moving from Rhode Island to Florida, where he was hired by the Broward County Sheriff's Department. He retired from the Sheriff’s Department after twenty-five years of service. The Veteran reported his personal source of income of a pension in the amount of $50,000 per year and Social Security in the amount of $1600 per month.

On March 2010 VA examination, the examiner indicated that the Veteran’s PTSD signs and symptoms are transient or mild, and decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.

The report of a July 2010 private psychological assessment indicates that the Veteran graduated from high school in Rhode Island and that he described his academic abilities as average. After the Marines, he attended college but left after three semesters because he felt that he did not fit in. The examiner noted that the Veteran appeared to have no difficulty handling the stresses and demands of his previous jobs. However, he reported receiving warnings and suspensions for calling off work. His drinking would keep him from getting to work on time. Reportedly, he also had problems with supervisors.

On February 2016 VA examination, the examiner indicated that the Veteran’s PTSD signs and symptoms reflected occupational and social impairment with reduced reliability and productivity.

During a July 2019 private TDIU vocational assessment, his physical limitations included being unable to carry more than 30 pounds due to right shoulder pain, as well as limited prolong standing, walking, and climbing of stairs due to right ankle pain. With regard to treatment, the Veteran had received injections in his right shoulder since August 2009. It was also noted that he took over-the-counter pain medication, as needed, and applied a hydrocollator ice pack to his right shoulder and right ankle. Sometimes, he utilized an ankle brace for additional support.

The Veteran also experienced difficulty hearing due to the combination of bilateral hearing loss and tinnitus. His tinnitus was distracting and occurring intermittently throughout the day, thus impeding his ability to maintain concentration. While the Veteran had been prescribed hearing aids for approximately 9 years due to bilateral hearing loss, he continues to experience difficulty communicating with others.

In light of the PTSD symptoms mentioned above, the examiner went on to opine that it is as least as likely as not that the Veteran’s PTSD precluded him from securing and following substantially gainful employment since August 2009. Specifically, his interpersonal difficulties, irritability, and low frustration tolerance contributed to his tendency to isolate. Further, the examiner opined that due to the combination of PTSD, right shoulder and right ankle pain, hearing loss and tinnitus, the Veteran experienced limitations in his ability to maintain concentration and focus. For example, he frequently required his wife to repeat sentences during conversation or remind him of the plot of television shows due to racing thoughts, intrusive flashbacks, hearing difficulties, difficulty with memory, and distracting pain.

As mentioned above, the Veteran was last employed with the Williston airport from approximately August 2015 until
least as likely as not that the Veteran’s PTSD precluded him from securing and following substantially gainful employment since August 2009. Specifically, his interpersonal difficulties, irritability, and low frustration tolerance contributed to his tendency to isolate. Further, the examiner opined that due to the combination of PTSD, right shoulder and right ankle pain, hearing loss and tinnitus, the Veteran experienced limitations in his ability to maintain concentration and focus. For example, he frequently required his wife to repeat sentences during conversation or remind him of the plot of television shows due to racing thoughts, intrusive flashbacks, hearing difficulties, difficulty with memory, and distracting pain.

As mentioned above, the Veteran was last employed with the Williston airport from approximately August 2015 until June's 2016 until near-daily hallucinations forced him to quit. In his vocational opinion, the private examiner opined that the Veterans work during this period would not be considered substantially gainful unemployment due to his inability to perform this work for twelve consecutive months, thereby constituting a failed work attempt. Per the Social Security earnings record dated December 15, 2018, the Veterans earnings with the Williston airport were below the federal poverty threshold. The Veteran also experienced difficulty performing essential job tasks while working as a Broward County Sheriff’s Deputy. He experienced flareups of his right ankle every few months and also reported right shoulder pain when performing physical activities such as arresting or apprehending individuals. Further, as mentioned above, his PTSD led to difficult interactions with others including his colleagues, his supervisors, and the public.

In reviewing the evidence of record, the examiner went on to conclude that it is at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment, to include sedentary work, since at least August 2009 to the present. Further, the Veterans PTSD symptoms would preclude him from sustaining adequate pace in productivity and interacting with others, as required in all types of employment.

On his July 2019 VA Form 21-8940, the Veteran reported that by 2006, his PTSD symptoms had escalated to a point where he had no choice but to retire. Working as a police officer, he was continuously depressed every day and the thought of getting out of bed seemed like an insurmountable task. He often showed up to work late 2-3 days per week and called out of work 3-4 days per month, leading to multiple disciplinary actions in his file. Additionally, the Veteran reported that his PTSD cause him to be overwhelmed very easily. He would frequent start something, become anxious, and quit, leaving tasks unfinished on a regular basis.

On August 2019 VA examination, the examiner indicated that the Veteran’s PTSD signs and symptoms reflected occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.

For purposes of this analysis, the Board notes that marginal employment is not considered to be substantially gainful employment. Rather, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census. Such employment may also be held to exist, on a facts-found basis, in instances in which a Veteran is employed in a protected environment, such as a family business or sheltered workshop, and his earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a).

Based on the evidence of record, the Board finds that the disabling effects of the Veteran's service-connected disabilities, particularly, his PTSD, as likely as not have rendered him unable to obtain or maintain substantially gainful employment. In so concluding, the Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical question, but rather a determination that must be made by an adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (interpreting 38 C.F.R. § 4.16(a)).

Overall, in consideration of the private employability assessment and the evidence of record concerning the type and severity of the Veteran's PTSD symptomatology, and in consideration of the Veteran's employment history, education, and vocational attainment, the Board finds that, since July 24, 2010, the Veteran's service-connected PTSD, particularly, has as likely as not, been of such nature and severity as to prevent him from securing or following substantially gainful employment. Accordingly, and with resolution of all reasonable doubt in the Veteran's favor (see 38 U.S.C. § 5107(b), 38 C.F.R. § 3.102, and Gilbert, supra
38 C.F.R. § 4.16(a)).

As for the current award of a TDIU, the Board will not specify the effective date of the award and allow the RO to do so, in the first instance. See Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) ("To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating.")

JACQUELINE E. MONROE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board B. Spann, Associate 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.

Analyze in VA Law Explorer