Citation Nr: 1516416 Decision Date: 04/16/15 Archive Date: 04/24/15 DOCKET NO. 12-20 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated at 50 percent disabling. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Dixon, Associate Counsel INTRODUCTION The Veteran had active service from May 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In September 2013, the Veteran testified via video conference at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. At the time of the hearing, additional evidence was received, along with a waiver of RO consideration. In adjudicating this appeal, the Board has not only reviewed the physical claims file, but has also reviewed the electronic file on the Virtual VA and VBMS systems to ensure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's PTSD is manifested by occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking and mood, due to symptoms such as severe impairment in: emotional functioning; thought processes and cognitive functioning; concentration and task completion; social interaction; and family relationships. 2. The service-connected disabilities prevent him from obtaining or maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C.A. § 1155 (2014); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2014). 2. The criteria for the assignment of TDIU due to service-connected disabilities have been met. 38 U.S.C.A. § 1155 (2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. PTSD Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2014). PTSD is rated under Diagnostic Code 9411, 38 C.F.R. § 4.130. Under that code, a 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an 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 memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The Veteran is currently assigned a 50 percent rating for his service-connected PTSD, effective July 9, 2004. He asserts that his PTSD symptoms have increased in severity such that a higher rating is warranted. The majority of the evidence concerning the level of severity of the Veteran's PTSD comes from letters submitted by the Veteran's private psychologist, Dr. M.Y. The Veteran has continuously received treatment from Dr. M.Y. since June 2004, seeing him two to three times a month. Letter from Dr. M.Y. dated May 15, 2004; February 2013 Hearing Transcript. Since May 2006, Dr. M.Y. has consistently reported that the Veteran experiences chronic and severe PTSD, with symptoms such as sleep disturbances, distorted thought processes, emotional numbing, disturbed mood, extreme isolation and withdrawal, distorted cognitions, and social impairment. Notably, Dr. M.Y. stated that the Veteran's symptoms "impede his ability to concentrate, impair his ability to discriminate between relevant and irrelevant stimulus, and make functioning in the normal everyday world of work and social interaction problematic and prohibitive." Additionally, "[d]ue to his mood swings and emotional impairment, cognitive distortion, and skewed thinking, along with his severe sense of dread and impending doom, [the Veteran] experiences increasing trouble completing small tasks and remaining focused." As to social interactions, the Veteran experiences social isolation, estrangement from friends and family, and alienation from the community. The Veteran often experiences confusion concerning the correct behavior in social situations. His ability to negotiate conversation in a non-threatening manner is impaired, such that the Veteran typically reacts with outbursts of anger that are inappropriate. Dr. M.Y. has also noted that the Veteran's outbursts of anger and mood swings coupled with his intrusive images of combat experiences, as well as his tendency to experience threat where there is no threat, house a persistent potential danger to others. During his September 2013 Board hearing, the Veteran testified as to many of the same behaviors noted by Dr. M.Y. Specifically, the Veteran mentioned that he experiences anxiety and panic attacks. He also testified that he had a hard time attending the Board hearing, which was evidenced by his visibly nervous and anxious manner during the hearing. When asked about his daily activities, he indicated that he would keep busy to the point of exhaustion in order to "keep his mind off things." He also testified that he has suicidal thoughts "every now and then," and kept repeating that he feels like he's running out of time. As to occupational and social interactions, he testified that he left his job as a voter registrar in August 2013 because he was uncomfortable around people and could no longer deal with it. He also testified that despite learning anger management techniques from Dr. M.Y., he sometimes goes "off the handle" on people. The Veteran was married for 31 years, and has been remarried for four years. He has three children and several grandchildren with whom he has a good relationship, but indicated that he has a lot of guilt over the way he treated his children when they were growing up. The Veteran was afforded a VA examination in December 2010 to determine the severity of his PTSD. The examiner conducted an in-person interview of the Veteran, as well as a review of his medical and claims files. The Veteran reported continuing to struggle with insomnia and nightmares about Vietnam, as well as irritability, anger, impaired concentration, paranoia, hypervigilance and frequent crying spells. He also reported being suicidal at times, but did not think he would actually hurt himself. He denied having homicidal ideation. As to interactions with other people, the Veteran stated that he prefers to be alone and finds it difficult to be in enclosed spaces as well as amongst large groups of people. He also stated that he finds it difficult to experience loving and kind feelings for other people. As to daily activities, he reported doing a lot of chores around his home, stating "I clean up until I can't move." He also watches some television, and sometimes hunts with his sons. The Veteran reported that he sometimes experiences auditory hallucinations and will think he hears voices telling him to look out or watch it. He also experiences visual hallucinations and at times will think that something or somebody is there when no one is there. Upon examination, the Veteran was casually and appropriately dressed, and his general behavior was noted to be appropriate. He was alert and oriented to person, place, date and situation. The examiner noted that the Veteran was tearful at times during the interview. His speech was appropriate, but with restricted affect. His thought processes were linear and logical. His judgment and insight were intact. The examiner noted that the Veteran appeared to have a foreshortened sense of the future. The examiner ultimately concluded that the Veteran's PTSD symptoms were moderate to severe in nature. The other relevant evidence in the record includes several VA outpatient treatment records dated up to December 2010. These records document that the Veteran had sleep disturbances and hypervigilance, but consistently noted that he denied suicidal/homicidal ideation and auditory/visual hallucinations. They also consistently noted that the Veteran had good memory and concentration, insight and judgment. The Board finds that the evidence shows that the Veteran is entitled to a 70 percent rating for his PTSD. The Veteran's psychiatric condition is primarily manifested by sleep disturbances, distorted thought processes, emotional numbing, disturbed mood, extreme isolation, and social impairment. The evidence does not show that the Veteran experiences total occupational and social impairment. Although the Veteran has strained relationships with his family, he nonetheless has maintained relationships with his children and grandchildren. He was also married for 31 years, and has been remarried for four years, indicating that he is capable of maintaining familial relationships. The Board acknowledges that Dr. M.Y. opined that the Veteran's impaired cognition may cause him to be a danger to others and that the Veteran experiences persistent intermittent suicidal ideation, however, there is no evidence in the record that the Veteran is in fact a danger to himself or others. Accordingly, the Board finds that the Veteran's symptomatology is consistent with a 70 percent rating, but no more. II. TDIU Entitlement to total disability rating based upon individual unemployability (TDIU) is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). A total disability rating may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is service-connected for prostate cancer, currently rated at 60 percent disabling; PTSD, now rated at 70 percent disabling; right ankle scar, currently rated at 10 percent disabling; and erectile dysfunction, currently rated at zero percent disabling. His overall disability rating is 90 percent; therefore the Veteran meets the percentage requirements for eligibility to receive TDIU benefits. 38 C.F.R. § 4.16(a). Consequently, the remaining question is whether the Veteran's service-connected disabilities preclude gainful employment. Consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by non-service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.341, 4.16(a), 4.19 (2014). The Veteran testified during his September 2014 Board hearing that he had left his job as a voter registrar in August 2013 because he could no longer deal with being around people. There are also letters from D.N. and L.D. stating that the Veteran needed to use the restroom 7 to 10 times per day while at work. The Board finds that the combined psychiatric impact of PTSD with the physical impact caused by residuals of prostate cancer precludes the Veteran from gaining and maintaining substantially gainful employment. To the extent there may be any remaining doubt, such doubt must be resolved in favor of the claim. This standard of proof reflects "the high esteem in which our nation holds those who have served in the Armed Services." Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). As the Court has noted: [b]y requiring only an 'approximate balance of positive and negative evidence' to prove any issue material to a claim for veterans benefits, 38 U.S.C. § 5107(b), the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, No. 12-2764, slip op. at 16 (U.S. Vet. App. April 16, 2014). Therefore, the Board resolves all reasonable doubt in favor of the Veteran and finds that his service-connected disabilities prevent her from securing gainful employment. Accordingly, entitlement to TDIU is warranted. 38 C.F.R. §§ 3.341(a), 4.16, 4.18, 4.19. The Veteran should note that the RO assigns the effective date for TDIU, and may consider the fact that he was fully employed until August 2013. III. VA's Duties to Notify and Assist The Veteran does not assert that there has been any deficiency in the notice provided to him under the Veteran's Claims Assistance Act of 2000 (VCAA). A notice letter dated in August 2006 is of record. The RO has obtained pertinent medical records including the Veteran's STRs, VA outpatient treatment reports, and private treatment reports identified by the Veteran. The Veteran has not identified any other outstanding records that he wants VA to obtain or that he believes are relevant to his claims. Therefore, the duty to assist him in obtaining pertinent records has been satisfied, to the extent that identified records are obtainable. 38 C.F.R. § 3.159(c) (2014). The Veteran was also provided with a VA examination in December 2010. The Veteran has made no allegations as to the inadequacy of the medical opinion. As such, the Board is entitled to presume the competence of the VA examiner and the adequacy of the examination. Sickels v. Shinseki, 642 F.3d 1362 (Fed. Cir. 2011). Finally, the Veteran testified at a hearing before the Board in September 2013. A VLJ who conducts a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the hearing, the Veteran was assisted by a representative and the VLJ asked relevant questions concerning the Veteran's symptoms and the resulting impairment, as well as the effect of his disability on his occupation. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) (2014). Accordingly, the Board finds that no further development is required in this case. ORDER Entitlement to an increased rating of 70 percent, but no more, for PTSD is granted, subject to the laws and regulations governing payment of monetary benefits. Entitlement to a total disability evaluation based upon individual unemployability is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs