Citation Nr: 1603698 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 13-10 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating higher than 50 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD A. Gibson INTRODUCTION The Veteran served on active duty from February 1969 to February 1971. This appeal to the Board of Veterans' Appeals (Board) is from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In December 2015, the Veteran and his wife had a personal hearing before the undersigned VLJ. In this decision, the Board is granting an increased rating for PTSD as well as a TDIU. However, the issue of whether he is entitled to an even higher rating for PTSD requires additional development and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's PTSD manifests with social and occupational impairment with deficiencies in most areas. 2. His PTSD precludes him from obtaining and maintaining substantial gainful activity. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating for PTSD have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.126-4.130, DC 9411 (2015). 2. The criteria for a TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) VA has complied with its duty to assist in developing this claim. 38 C.F.R. § 3.159(c). Indeed, relevant treatment records have been associated with the claims file. He has also been provided with a VA examination that is adequate for adjudicatory purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Although the record is sufficient to grant a 70 percent rating and a TDIU, as discussed below, additional development must still occur regarding whether a 100 percent rating is warranted for PTSD. The record does not contain any medical records past 2011. Therefore, this appeal must be remanded so additional records can be obtained and reviewed. The Veteran is not prejudiced by the Board proceeding without those additional records, as the issue is also being remanded so that the development can be completed. Increased rating for PTSD Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2015). Separate diagnostic codes (DCs) identify the various disabilities. See generally 38 C.F.R. Part 4 (2015). 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 rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Consistent with the facts found, the rating may be higher or lower for periods of the time under review on appeal, that is, the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran's PTSD is rated as 50 percent disabling. He argues that he is entitled to an even higher rating. The criteria for evaluating PTSD are found at 38 C.F.R. § 4.130, DC 9411 (2015). A 50 percent evaluation is warranted where 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where 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 inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and, memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed above serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a) (2015). After review of the evidence, the Board finds that a 70 percent is the more appropriate rating for the Veteran's PTSD. 38 C.F.R. § 4.7. In resolving all doubt in his favor, he has occupational and social impairment with deficiencies in most areas. 38 C.F.R. § 4.130. The Board notes that the record does not contain any medical records dated past 2011. However, the Veteran and his wife provided testimony at the December 2015 hearing that adequately supplements the record. They are competent to attest to the symptoms they can observe, and the Board finds their testimony credible. It is consistent with other statements submitted in conjunction with the claim, as well as with statements to the VA examiner. Therefore, their testimony is probative. The Veteran is extremely isolated. He prefers to be alone. His first wife divorced him because she could not handle his symptoms. Although he has remarried, and has a close relationship with his new wife and also with his children, he does not do outside activities with them. He does not attend functions outside of the home. His wife testified that she has to coax him to come out of his room to spend time with her, and that she often feels that he does not want her around. She testified that he is closed off, even when he is with her, and that there is no changing his mind about leaving the house or joining her on family functions, and that he would not have a good time even if she could convince him. She said that her family does not understand what she sees in him, especially because he gets angry so frequently. She said that he wails in his sleep. The record notes that he gets irritated and angry, and that he and his wife have arguments. He has hit her at least one time. There is further evidence that he struck a friend who approached him from behind. He does not trust people or get close to people. The Veteran is extremely vigilant and constantly making sure he is safe. He has difficulty concentrating, and difficulty completing tasks. He has frequent panic attacks. The Board does not find that his PTSD results in total occupational and social impairment. Id. He is married and reportedly has a good relationship with his children. His symptoms likely impact these relationships, but he has been able to maintain them. He also reportedly has a friend. His insight and judgment have been consistently assessed as fair to good. He does go to church on a weekly basis. Thus, while his symptoms are severe, the Board does not find them to be totally disabling, at least not based on the evidence as it currently stands. Because this issue is being remanded for further development, including obtaining records, a discussion of whether an extraschedular rating is warranted is not currently appropriate. TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of substantial gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). The Veteran must meet specific requirements before consideration of whether the evidence demonstrates unemployability. If the Veteran has only one service-connected disability, it must be rated at 60 percent or more; if he has two or more service-connected disabilities, at least one must be rated at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. Id. Here, his combined rating is 70 percent disabling, which meets the schedular requirements for the assignment of a TDIU. The question that remains, then, is whether the Veteran's service-connected disability precludes him from obtaining or engaging in substantially gainful employment. 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The record shows the Veteran has not worked since the 1990s. The Board finds that his PTSD symptoms have precluded gainful employment for the entire period on appeal. The evidence shows his irritability and anger would negatively impact relationships with co-workers and with potential clients or customers. He also has difficulty maintaining concentration, which would negatively impact his ability to complete tasks, meet deadlines, multitask, or undergo detailed tasks. He has extreme anxiety and suspiciousness, as well as truncated concentration. Further, a February 2005 medical opinion by Dr. C. indicated the Veteran would not be able to handle the stress of a job because of his PTSD. His symptoms are found to have caused him to be unemployable. Accordingly, a TDIU is granted. ORDER A 70 percent rating is granted for PTSD. A TDIU starting from April 2006 is granted. REMAND The issue of whether the Veteran is entitled to a 100 percent rating for PTSD is remanded for additional development. No records since 2011 have been associated with the claims file. Further, he should be provided an updated examination. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all treatment he has had for his PTSD and make arrangements to obtain all records not already associated with the claims file, including updated VA treatment records dated since 2011. 2. After receipt of records, schedule the Veteran for an appropriate examination for a report on the current severity of his PTSD. The examiner is asked whether the Veteran has total social and occupational impairment due to his symptoms. All opinions are to be supported by explanatory rationale. 3. Following completion of the above directive, review the claims file to ensure compliance with this remand. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. 4. Finally, after completing all of the above, and any additional development deemed warranted, readjudicate the claim on appeal. If the benefit on appeal remains denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs